1 DEFINING DEFAMATION: COMMUNITY, HARM AND PLAINTIFF STATUS IN THE AGE OF THE INTERNET By AMY KRISTIN SANDERS A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLOR IDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2007
2 2007 Amy Kristin Sanders
3 To my parents, Raymond and Patricia Sanders You are my mentors and my best friends. Wit hout your love and support, I could never have made it this far.
4 ACKNOWLEDGMENTS The author acknowledges the support and assist ance of her dissertation co-chairs Dr. Bill F. Chamberlin and Dr. John W. Wright. She al so expresses her sinc ere gratitude to her committee members: Dr. Laurence Alexander, Dr. Justin Brow n and Professor Lyrissa Lidsky. Their extreme patience and encouragement made this dissertation possible. The author is grateful for the support she has received from her family and friends. Without their intent interest, she would not have had the discipline needed to complete such a large project in such a short amount of time. A special thanks also goes to Jeff Adelson and Vicki Ahn, whose patience with the authors frus trations throughout the process was remarkable. In addition, the advice and guidance provided by her friends and colleagues Joshua Azriel, Courtney Barclay and Richard Waters were invalu able during the research and writing process.
5 TABLE OF CONTENTS page ACKNOWLEDGMENTS...............................................................................................................4 ABSTRACT....................................................................................................................... ..............9 CHAPTER 1 INTRODUCTION..................................................................................................................10 Purpose........................................................................................................................ ...........16 Literature Review.............................................................................................................. .....17 Defamatory Statement.....................................................................................................19 Reputation in the Community.........................................................................................23 Publication.................................................................................................................... ...26 Fault.......................................................................................................................... .......28 Defamation Moves into Cyberspace.......................................................................................32 Jurisdiction................................................................................................................... ...33 Anonymity...................................................................................................................... .35 ISP Immunity Under the Co mmunications Decency Act................................................38 Community......................................................................................................................44 Plaintiff Status............................................................................................................... ..45 Research Questions............................................................................................................. ....46 Methodology.................................................................................................................... .......47 Secondary Sources...........................................................................................................48 Primary Sources...............................................................................................................49 Dissertation Outline........................................................................................................... .....50 2 THE INTERNET AS A MEDIUM OF MASS COMMUNICATION..................................52 History of the Internet........................................................................................................ .....53 Early Computer Networks...............................................................................................53 ARPANET.......................................................................................................................55 The Internet Goes Public.................................................................................................57 Benefits of the Internet....................................................................................................... ....59 Consequences of the Internet..................................................................................................62 Anonymity Issues............................................................................................................63 A right to speak anonymously?................................................................................63 Anonymous speech online.......................................................................................65 The Communications Decency Act.................................................................................69 The CDA and ISP Immunity...........................................................................................71 Jurisdictional Issues.........................................................................................................82 Conclusion..................................................................................................................... .........87
6 3 THE INTERNET AND FIRS T AMENDMENT THEORY..................................................90 The Marketplace of Ideas from Milton to Modern Day.........................................................91 John Milton.................................................................................................................... ..91 John Stuart Mill...............................................................................................................93 Justice Oliver Wendell Holmes.......................................................................................94 The Making of an American Marketplace..............................................................................97 Criticisms of the Marketplace Metaphor.......................................................................100 The Court implements a right of access.................................................................103 Returning to recipient-based marketplace models.................................................104 Malaise with the Marketplace...............................................................................................107 The Modern American Mark et: Rehnquists Legacy....................................................110 Recognition of the Internet in the Marketplace.............................................................115 The Internet and Other First Amendment Theories..............................................................115 Alexander Meiklejohn and Self-Governance................................................................116 The Supreme Court and Self-Governance.....................................................................117 Vincent Blasi and the Checking Value..........................................................................124 The Supreme Court and the Checking Value................................................................126 Thomas Emersons Self-Fulfillment Theory.................................................................128 The Supreme Court a nd Self-Fulfillment......................................................................130 Conclusion..................................................................................................................... .......131 4 DEFINING COMMUNITY.................................................................................................134 The Courts Look at Community: Print and Broadcast Defamation.....................................134 U.S. Supreme Court.......................................................................................................135 Federal Appellate Courts...............................................................................................139 Federal Trial Courts.......................................................................................................147 State Court Cases...........................................................................................................151 The Courts Look at Community: Online Defamation..........................................................159 Conclusion..................................................................................................................... .......163 Geographic Area of Publication....................................................................................164 Site of Plaintiff Residence.............................................................................................164 Specialized or Prof essional Community.......................................................................164 Mixed Methods..............................................................................................................165 5 DEFINING PLAINTIFF STATUS......................................................................................166 The Courts Look at Plaintiff Status : Print and Broadcast Defamation.................................166 U.S. Supreme Court.......................................................................................................166 New York Times v. Sullivan: Public officials and actual malice............................167 Curtis Publishing v. Butts: A standard for public figures......................................170 Rosenbloom v. Metromedia and Gertz v. Welch : The standard for private persons................................................................................................................173 The Lower Courts and Plaintiff Status..........................................................................179 Public officials........................................................................................................180
7 Public figures..........................................................................................................187 Private persons.......................................................................................................198 The Courts Look at Plainti ff Status: Online Defamation.....................................................201 Conclusion..................................................................................................................... .......208 6 DEFINING HARM..............................................................................................................212 The Courts Look At Harm: Print and Broadcast Defamation..............................................212 Common Law Damage Requirements...........................................................................213 Injury to business reputation..................................................................................215 Injury to personal reputation..................................................................................216 Pecuniary injury.....................................................................................................217 Constitutional Damage Requirements...........................................................................218 The Courts Look at Harm: Online Defamation....................................................................220 Conclusion..................................................................................................................... .......224 7 CONCLUSION.....................................................................................................................226 Research Questions............................................................................................................. ..227 What Are the Significant Issues for On line Defamation that Have Not Been Adequately Addressed in the Scholarly Literature?..................................................227 How Do the Courts Define the Notions of Community, Harm and Pl aintiff Status in Defamation Cases that Do Not Involve Online Defamation?....................................228 Community.............................................................................................................228 Plaintiff status.........................................................................................................231 Harm.......................................................................................................................237 How Do Courts Define the Notions of Community, Harm and Plaintiff Status in Online Defamation Cases?.........................................................................................240 Community.............................................................................................................240 Plaintiff status.........................................................................................................243 Harm.......................................................................................................................244 What Considerations Are Important When Courts Try to Define the Notions of Community, Harm and Plaintiff Stat us in Online Defamation Cases?......................246 Community: Geographic reach of the Internet.......................................................247 Plaintiff status: Ease of access to the Internet........................................................250 What First Amendment Theories Are Impor tant When Courts Try to Define the Notions of Community, Harm and Plainti ff Status in Online Defamation Cases?....253 Marketplace of ideas..............................................................................................253 Self-governance, checking value and self-fulfillment............................................257 Future Research................................................................................................................ ....258 Conclusion..................................................................................................................... .......260 LIST OF REFERENCES.............................................................................................................262 Primary Sources................................................................................................................ ....262 Cases.......................................................................................................................... ....262 Federal Statutes.............................................................................................................269
8 State Statutes.................................................................................................................270 Secondary Sources.............................................................................................................. ..270 Books.......................................................................................................................... ...270 Journal and Magazine Articles......................................................................................271 Newspaper Articles.......................................................................................................274 Plays.......................................................................................................................... ....274 Reports........................................................................................................................ ...274 Restatements of the Law...............................................................................................274 Web sites...................................................................................................................... .275 BIOGRAPHICAL SKETCH.......................................................................................................276
9 Abstract of Dissertation Pres ented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy DEFINING DEFAMATION: COMMUNITY, HARM AND PLAINTIFF STATUS IN THE AGE OF THE INTERNET By Amy Kristin Sanders December 2007 Chair: Bill F. Chamberlin Cochair: John Wright Major: Mass Communication By examining court cases in both federal and state courts throughout the United States, this study looks at how the courts are defining thr ee components of defamation actions: community, harm and plaintiff status. This study examines defa mation cases that have arisen both before and after the Internet became a popular medium of mass communication. For the most part, it appears courts are using the rules they crafte d in cases before the Internet, with some modification, in the cases that have arisen dur ing the Internet Age. In defining community and plaintiff status, some courts ha ve begun to recognize the unique ch aracteristics of the Internet its appeal to the masses and globa l reach which may provide the justification needed to craft rules specifically tailored for Internet defamati on cases. Such advances have not been made in the area of harm, where the courts continue to apply the common law rules and constitutional mandates used in traditional print and broadcast defamation cases.
10 CHAPTER 1 INTRODUCTION A mans interest in his own reput ation is likely one of the thi ngs he holds dearest, for his reputation colors all aspects of his life, including personal and professional relationships and transactions. Thus, the way so ciety perceives a man may be mo re important than the way in which the man perceives himself. If, as it ha s been said, a mans word is his bond, then his reputation for truth, integrity, virt ue and the like are of param ount importance. Theoretically, perhaps, as long as a man leads an upstanding and honorable life, his re putation should remain above reproach. The difficulty of reputation lies in its point of origin : Reputation is not only how a man lives his life, but it is also how others endeavor to characterize his actions.1 Thus, society has developed a system for protecting reputational intere sts from the harms inflicted by others characterizations. The tort of defamati on attempts to do just that by protecting a man from the utterance of false fact ual assertions that would besm irch his reputation within his community.2 In the early days of the tort, ascertaining a ma ns community might have been as simple as discerning the members of his village or tow n. However, as society has become more technologically advanced and in terconnected, a mans community may no longer consist only of those who reside within shou ting distance. As mass communica tion and rapid transportation have developed, a mans community may instead consist of family in distant lands or business 1 Legal scholar David Anderson has noted that defamation law attempts to protect four types of reputational interests: a persons existing relationships with others, a mans future relations with others, a persons existing reputation among the general public and a persons right to prevent a negative public image should that person not have one already. See David Anderson, Reputation, Compensation & Proof 25 WM. & MARY L. REV. 747, 764-66 (1984). 2 Defamation is an impairment of relational interest; it denigrates the opinion which others in the community have of the plaintiff and invades the plaintiffs interest in his reputation and good name. Keisau v. Bantz, 686 N.W.2d 164, 175 (Iowa 2004).
11 associates linked together by an interagency computer networ k. Indeed, a mans community likely includes members with whom he has neve r had face-to-face contact. This 21st century community, united by the Internet, is a far cry from the framework in which the traditional law of libel developed throughout th e 19th and 20th centuries. Al though the ability to instantly communicate with a global audience has created le gal uncertainties as jurists struggle to adapt age-old jurisprudence to modern-day technologies, such innovations also hold much potential to promote an environment conducive to free e xpression that has long been contemplated. Philosophers John Milton and John Stuart Mill could never have envisioned a marketplace of ideas quite like the Internet.3 Entering its third decade in the public domain,4 this 21st century information superhighway has taken on many of th e characteristics of the marketplace imagined more than 150 years by the English thinkers. As a mass medium, the Internet has opened the door for an abundance of speech, ranging from the highly protected political speech to unprotected obscenity.5 With the increasing amount of speakers and messages has come a flurry of litigation as courts struggle to regulate the medium of the masses one which transcends nations, ages and cultures.6 3 See, e.g., JOHN MILTON, AEROPAGITICA (J. Suffolk ed., 1968) (1644); JOHN STUART MILL, ON LIBERTY (D. Spitz ed., 1975) (1859). 4 See MATTHEW COLLINS, THE LAW OF DEFAMATION AND THE INTERNET 11 (2d ed. 2005). In the late 1970s, the National Science Foundation created the Computer Science Network as a means of connecting American computer scientists. Id. 5 See generally KEVIN J. CONNOLLY, LAW OF INTERNET SECURITY AND PRIVACY 24 (2003) for a discussion of the rise of the Internet as a mass medium. 6 The U.S. Supreme Court first mentions the complexity of regulating the Internet along with other emerging media technologies in a 1995 case dealing primarily with the cable industry. See Denver Area Educational Telecommunications Consortium v. F.C.C., 518 U.S. 727 (1996) (holding that a provision allowing cable operators to prohibit patently offensive or in decent programming was constitutional as applied to leased-access channels but unconstitutional as applied to publicaccess channels). As cable and teleph one companies begin their competition for control over the single wire that will carry both their se rvices, we can hardly settle rules for review of regulation on the assumption that cable will remain a separable an d useful category of First Amendment scrutiny. And as broadcast, cable, and the cybertechnology [sic] of the Internet and the World Wide Web approach the day of using a
12 Adding to this complexity is the multit ude of sources who seek to communicate information via the Internet. Ba sic communication theory envisions a speaker-receiver chain in which the receiver is nearly certain of the origin of the received message.7 The Internet does not provide such a simplistic single-source model of communication. Instead, it provides multiple speaking sources that are often unidentifiable by the receiver and may lack the credibility indicators associated with ot her forms of mass communication.8 No longer can the receiver trace information back to a source in simple fashi on. Thus, the rise of anonymous speakers in the Internet marketplace has contributed to the difficulty of its regulation.9 Like traditional mass media, the Internet allows speakers to communicate their messages to a large consuming public. However, because the content providers include independent speakers, whose information may be subject to minimal editing, as well as traditional media speakers, whose information is often verified and edited, defamatory speech, or false factual speech that injures a persons reputation, has grea ter potential to reach a widespread audience.10 Evidence of this can be traced to numerous inde pendent Web sites that purport to rate or rank common receiver, we can hardly assume that standards fo r judging the regulation of one of them will not have immense, but now unknown and unknowable, effects on the others. Id. at 776-777. 7 See generally CLAUDE E. SHANNON & WARREN WEAVER, A MATHEMATICAL MODEL OF COMMUNICATION (1949). 8 See Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE L.J. 855, 886 (2000). 9 See generally id. (arguing that courts could utilize the opinion defense in a way that would provide more protection for anonymous Internet speakers). 10 Id. at 864. Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. Id.
13 any number of subjects.11 Such Web sites often contain opin ion material interwoven with false factual assertions, which br ing them into the purview of the defamation tort.12 Researchers have even coined a term for defamatory speech about corporations that appears on the Internet.13 Cybersmear, as it has been dubbed, is often perpetrated by disgruntled former employees or customers who wi sh to harm a companys reputation.14 Those wishing to defame a company can use any number of tools rooted in Internet communication. Chain emails, Weblog postings, online forums and dedicat ed Web sites provide ample opportunity to promote ones message. Additionally, specific cybe rsmear-based chatrooms have developed to unite those with common communication objectives.15 Corporations are not the only targets of defamatory speech on the Internet. Professionals, too, are encountering the conseque nces of injurious falsehoods on the Internet. For example, educators are seeing their reputations jeopardized by postings on professor-rating Web sites such as RateMyProfessors.com or MyProfessorSucks.com with early litigation cropping up in the late 11 Some examples include: RateMyProfessors.com (allows students to rate college professors), DontDateHimGirl.com (allows women to rate ex-boyfriends), DrScore.com (allows patients to rate their health-care providers), TripAdvisor.com (allows travelers to rate hotels). 12 Although defamation has been defined in numerous ways, this dissertation primarily relies on the Restatement (Second) of Torts definition, which says a communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. See RESTATEMENT (SECOND) OF TORTS 559 (1999). 13 See, e.g., Scot Wilson, Corporate Criticism on the Internet: The Fine Line Between Anonymous Speech and Cybersmear, 29 PEPP. L. REV. 533 (2002) (discussing the First Amendment implications of defamatory speech against corporations on the Internet). 14 See Jon Swartz, Corporations Fight Internet Cybersmear, S.F. CHRON., April 13, 1999, at C1, available at http://www.sfgate.com/cgi-bin/article.cgi?fil e=/chronicle/archive/1999/04/13/BU93359.DTL (last visited March 6, 2006). 15 See, e.g., Flame Broiled: The Disgruntled Ex-Burger King Employee Page, http://www.geocities.com/capitolhill/lobby/2645/ (last vis ited July 19, 2007); Walmar t Workers of America at Wakeup Walmart.com, http://www .wakeupwalmart.com/workers/ (l ast visited July 19, 2007).
14 1990s.16 However, as the online rati ngs industry expands, litigation, too, will likely increase. By 2006, more than 9 million students had accessed RateMyProfessors.com, according to a news release on the site.17 The site contains more than 4.2 m illion ratings for professors from more than 5,400 universities, making it the largest professor-rating site on the Internet.18 While college professors were often the initial targets of such Web sites, even secondary school teachers have become fair game. Parent s and students can log on to RateMyTeacher.com to evaluate and criticize thos e who educate elementary and high school students. The ratings mechanism includes several categories with numer ical ratings scales as well as a narrative section where reviewers can ente r prose of their own choosing. The categories include easiness, helpfulness, clarity, quality and hotness. Thes e numerical rankings do not pose much likelihood for defamation litigation, given their nature as unactionable opinion statements. The narrative sections, however, provide more freedom for comment, allowing students to contribute false factual allegations that would be ri pe targets for defamation lawsuits. As more and more Internet-s avvy communicators enter the on line world, professionals and private people alike become likely targets of online defamation. According to a January 2006 study by the Pew Internet & American Life Proj ect, 87 percent of Americans ages 12-17 were online.19 Their college-aged counterparts re ported 82 percent Internet adoption.20 Like more 16 Early examples of cases include G odfrey v. Cornell University and Curzon-Brown v. Lathowers. For more information, see Carl S. Kaplan, English Court May Test U.S. Ideals on Online Speech N.Y. TIMES, June 5, 1998, available at http://www.nytimes.com/library/tech/98/06/cyber/cybe rlaw/05law.html (last visited July 30, 2007); Katie Dean, Do Dissed Teachers Have a Case?, Wired, June 12, 2000, available at http://www.wired.com/culture/lifestyle/news/2000/06/36720 (last visited July 30, 2007). 17 See About Us, http://www.ratemyprofessors .com/About.jsp (last visited March 6, 2006). 18 Id. 19 Mary Madden. Generations Online 1. (Dec. 2005), at http://www.pewinternet.org/pdfs/ PIP_Generations_Memo.pdf (last visited August 22, 2006). 20 Id.
15 than 90 percent of Americans, these students fl ocked to the Internet to communicate; however, they viewed e-mail as old and instead prefer more interac tive and real-time communication methods, including instant messaging and blogging.21 Generation Y (ages 1828) reported using the Internet primarily for school research (73 percent), health research (73 percent) and instant messaging (66 percent). Online te ens (ages 12-17) reported sim ilar usage patterns, with the heaviest consumption for online games (81 percen t), instant messaging (75 percent) and getting information about a schoo l/college (57 percent).22 These age groups also tended to be more likely to read and contribute to Weblogs than their older counterparts.23 As their Internet usage has gr own, Generation Y has also come to view the Internet as a decision-making tool, either by c ontributing content or consuming content contributed by others. For example, more than one-third of the re spondents had gone online to rate a person or product.24 Nearly 80 percent engaged in product research, indicating a reliance on the Internet as a source of trusted content.25 In addition to consuming Internet content, younger Web surfers were also creating it. By November 2005, more than half of all teens had created content for the Internet.26 Sharing self-authored content was the mo st popular form of content creation among those surveyed.27 Thus, it seems only natural that Web s ites such as RateMyProfessors.com or 21 Id. 22 Id. 23 Id. 24 Id. 25 Id. 26 Amanda Lenhart & Mary Madden. Teen Content Creators and Consumers 1. (Nov. 2005), at http://www.pewinternet.org/pdfs/ PIP_Teens_Content_Creation.pdf (last visited July 19, 2007). 27 Id.
16 GirlDontDateHim.com, which allow a variety of these creation/consumption behaviors, have sprung up in cyberspace. Purpose Given the speed with which such content can be disseminated and reputations injured as a result, it is important to examine the leve l of First Amendment protection available for defamatory speech online as courts begin to he ar cases involving these Web sites. As an example, the increasing number of Web sites that allow users to rate products, services and professionals such as educators and doctors present ripe ground for defamatory speech. Given the frequent reliance upon the Internet as a research tool, defamatory speech can be searched and read by co-wor kers, employers and others.28 Thus, defamatory statements published online have the potential to cause bo th reputational injury and economic harm interests traditionally protected by the courts under the law of defamation. Although the U.S. Supreme Court has not yet is sued any determinative opinions regarding Internet defamation, it has drawn on general First Amendment princi ples to guide the regulation of the Internet. Additionally, th ere is a long judicial history of traditional print and broadcast defamation cases that can be drawn upon to pr ovide guidance in the regulation of online defamation. By highlighting the strengths and we aknesses of the existing jurisprudence, this study will examine how the courts have begun to address three key elements in online defamation cases: community, harm and plaintiff st atus. It will also provide guidance for future jurisprudence that furthers th e goals of the First Amendment while balancing an individuals interest in protecting his re putation. Thus, this study examin es the regulation of online 28 See, e.g., Madden, supra note 19; The Deleting Online Predators Act: Hearin g on H.R. 5319 Before the H. Comm. on Energy and Commerce Subcommittee on Telecommunications and the Internet, 109th Cong. (July 11, 2006) (statement of Amanda Lenhart, Senior Research Speci alist, Pew Internet and American Life Project), available at http://www.pewinternet.org/pp t/Pew%20Internet%20Project%20SNS%20testimony%20-%207%2 007%2006%20%20submitted.pdf (last visited July 19, 2007).
17 defamatory speech by evaluating jurisprudence alrea dy established in key areas: traditional print and broadcast defamation cases and em erging Internet defamation cases. The study will address three aspects of the tort of defamation as the courts have begun to apply them in the context of online defama tion. Specifically, the research examines the definitions of community, harm and plaintiff status as they apply to online defamation by exploring how the courts have used the terms in defamation jurisprudence decided before and after the rise of Internet-based litigation. First, the study will explore how courts have defined community and harm in defamation cases th at do not involve online defamation. Then, the study will examine how the courts have define d community and harm in early cases involving online defamation. In doing so, the st udy will address what considerat ions are important to courts when defining those elements of defamation. Fi nally, the study will also examine which First Amendment theories are important in defining the elements of community and harm. Additionally, the study will explore how the courts have constructed plaintiff status in both traditional print and broadcast defamation cases as well as online defamation cases. To do so, the study will explore how courts ha ve distinguished between public officials, public figures and private persons in defamation cases that do not involve online defamation. Then, the study will examine how the courts have distinguished betw een public officials, publ ic figures and private persons in early cases involving online defamati on. In doing so, the study will address whether there are differences when cour ts distinguished between public officials, public figures and private persons in cases dealing with trad itional and online defamation. Finally, the study examines these distinctions in light of four prominent First Amendment theories. Literature Review The goal of tort law is to repair a wrong th at has been done, which can be accomplished in a number of ways through both legal and equita ble remedies. Along this vein, the crux of
18 defamation law stems from the interest in protecting ones reputation from harm.29 Historically, defamation law broken into the law of libel fo r written defamation and the law of slander for spoken defamation targeted reputational injury in both written and spoken form. As technology has evolved, the law of defamation has cha nged accordingly, often doing away with the distinctions between libel and slander in order to accommodate newer forms of communication, including television where the defamatory statemen ts may come in the form of a written script spoken live over the broadcast airwaves.30 Scholars, as well as the courts have begun to discuss the eve r-changing role of defamation law in a technologically advanced existence. Along with television, the Internet has proven taxing to traditional defamation law because fr equently the defamer and the defamed are no longer proximately located or even easily identifiab le, as they often have been in the past. Such changes have left scholars and courts struggling to mold the historically speechand print-rooted tort concepts into more malleable, flexible methods for protecting modern-day reputational interests.31 As a result, much of todays defamation scholarship has taken on a normative approach, evaluating current prac tice while suggesting future cour ses of conduct for courts to follow. 29 RANDALL BEZANSON ET AL., LIBEL LAW AND THE PRESS 1 (1987). 30 Id. at 3. [T]he libel tort has experienced profound change in the past 23 years. So, too, has the reconciliation between the values of a persons good name and free expression. Id. 31 Id. at 3. The most heavily penalized by suits and threats of suits are th e smaller, newer, and less conventional media voices who, to survive, must attract attention by tackling subjects not covered by other media. In short, they must take risks. On the other hand, because of their financial insecurity, a libel suit, even through ultimately unsuccessful, would probably be fatal. Id. ( quoting David A. Anderson Libel and Press Self-Censorship 53 TEXAS L. REV. 422 (1975)).
19 Scholarly discussion of the tort of defamation typically addresses eith er the entire tort action or focuses on a specific element32 that is required for plaintiffs to plead and prove to succeed in court. To simplify a review of the lite rature, this section has been broken down into the elements of the cause of ac tion as delineated by the Restat ement (Second) of Torts with a discussion of relevant literature included in each section. A final section discussing the literature that deals with the challenges posed by on line defamation has also been included. Defamatory Statement As a part of their case, plaintiffs must plead a statement that is capable of a defamatory meaning. The Restatement (Second) of Torts requires this to be a false and defamatory statement about a person.33 Typically, these statements will fall into several categories of statements that address certain protected classes of reputational interest or those areas of defamation seen frequently by the courts because of their lik elihood for causing injury to reputation. Despite changing technologies used to communicate defama tory statements, the classes of reputational interests that are typically targeted have remained relatively consistent. Research has suggested that cert ain types of plaintiffs are more likely to be the targets of defamatory statements. In a groundbreaking 1981 study of 291 libel lawsuits, Stanford law professor Marc A. Franklin found the six largest categories of plaintiffs consisted of business managers, professionals, miscellaneous govern ment employees, law enforcement personnel, 32 See RESTATEMENT (SECOND) OF TORTS 558 (1977). To create liability for defamation there must be: (a) a false and defamatory statement concerning another;(b) an unprivileged publication to a third party;(c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Id. 33 See RESTATEMENT (SECOND) OF TORTS 559 (1977). A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Id.
20 commercial corporations and government officials.34 This, and other studies,35 suggests these categories of people are more likel y to be plaintiffs in defamation actions. Two of Franklins studies found that the content most likely to trigger a defa mation lawsuit falls into three prominent categories.36 These categories included accusations of crime, serious moral failings and incompetence in trade or profession.37 Additionally, many of the cases studied included a combination of the above-mentioned categories.38 Crime and moral failings tended to be equally prevalent triggers for defamation lawsuits among all plaintiffs, while corporations and professionals, not surprisingly, tended to take pa rticular offense to comments aimed at their incompetence in a trade or profession.39 One Franklin study found that defendants had a 70 percent success rate at fending off lawsuits rela ted to allegations of crime and moral failing.40 The success rate of defendants at staving off su its involving allegation of incompetence in a trade or profession was much lower, s uggesting this is were plaintiffs are more likely to get a victory or a settlement.41 These trade and professional incompetence cases are precisely the type of cases that would address injury to professional repu tation caused by defamatory statements posted online at Web sites rating educators, doctors and other professionals. 34 See Marc A. Franklin, Suing Media for Libel: A Litigation Study 1981 AM. B. FOUND. RES. J. 795, 807. 35 See Marc A. Franklin, Winners and Losers and Why: A Study of Defamation Litigation 1980 AM. B. FOUND. RES. J. 455; Randall Bezanson, The Libel Suit in Retrospect: What Plaintiffs Want and What Plaintiffs Get, 74 CAL. L. REV. 789 (1986); Franklin, supra note 34, at 807. 36 See Franklin, supra note 34, at 812; Franklin, supra note 35, at 481. 37 See Franklin, supra note 34, at 812; Franklin, supra note 35, at 481. 38 See Franklin, supra note 34 at 812. 39 Id. 40 See Franklin, supra note 34 at 814. 41 Id
21 More recent research has focused on how to de termine whether a statement is capable of a defamatory meaning. Much of this research was started in the 1990s as plaintiffs began to sue defendants who had labeled the plaintiffs as gay, and courts were struggling to determine whether being called a homosexual could a dversely affect a plaintiffs reputation.42 Attorney Randy M. Fogle, for example, suggested in 1993 a method through which courts could determine whether calling someone a homosexual would trigger defamation laws.43 Using traditional defamation law as a guide, Fogle suggested looki ng at whether the plaintiff was subjected to disgrace, ridicule or ostracization to dete rmine whether being called a homosexual would be defamatory in the area in which the plaintiff resides.44 Fogle also suggested that gay rights laws in existence could be used to determine if th e community perceived homos exuals in a negative light.45 Fogle, like many other scholars suggested an approach to de famatory meaning that looks at the context in which the statements were made to determine whether th ey are capable of being defamatory. Law professor Jeffrey E. Thomas suggested th at courts determine whether a statement is capable of defamatory meaning by relying on linguistic principles.46 Thomas asserted that pragmatics, the linguistic concept of determin ing meaning based on the way language is used,47 42 See, e.g. Gooden v. Town of Clarkton, N.C., Nos. 88-3630, 89-2019, 1990 WL 29198 (4th Cir. 1990); Gray v. Press Comms. LLC, 775 A.2d 678 (N.J. App. Div. 2001). 43 See Randy M. Fogle, Is Calling Someone Gay Defamatory?: The Meaning of Reputation, Community Mores, Gay Rights and Free Speech, 3 LAW & SEXUALITY 165 (1993). 44 Id. at 185. 45 Id. at 185-186. 46 See Jeffrey E. Thomas, A Pragmatic Approach to Meaning in Defamation Law 34 WAKE FOREST L. REV. 333 (1999). 47 Id. at 340.
22 can be traced to the common law-based jurisprudence in defamation.48 Thomas argued that the courts lost sight of the pragmatic approach in their jurisprudence when they began to constitutionalize the law of defamation in New York Times v. Sullivan and its progeny.49 From then on, the courts took on a more categorical approach to protecting speech based on what category of speech political speech, social spee ch, commercial speech was in question, which he argued devalues the meani ng of the words themselves.50 Thomas cited the results of Bezansons Iowa Libel Research Project,51 and more recent data from the Libel Defense Resource Center (now Media Law Resource Center), to support his conclu sion that meaning had essentially been removed from consideration in defamation jurisprudence until the Courts decisions in Milkovich v. Lorain Journal and Masson v. New Yorker Magazine .52 Despite the Supreme Courts use of a more pr agmatics-oriented approach in Milkovich53 and Masson ,54 48 Id. at 351. 49 Id. at 364. The recognition of constitutional doctrines applicable to defamation law initially reduced the importance of meaning by protecting statements without regard to their meaning. The constitutional doctrine evolved to protect speech in several categories based on something other than meaning. Id. 50 Id. 51 The Iowa Libel Research Project systematically interv iewed libel plaintiffs to uncover information about who sued, why they sued and how the courts handled their cases. Its results were published in number of publications. See generally BEZANSON, supra note 29. 52 See Thomas, supra note 46, at 377. 53 497 U.S. 1 (1990) (holding that statements contain false factual assertions are not protected opinion statements under the First Amendment). Michael Milkovich, a high school wrestling coach, sued for defamation per se after newspaper columnist implied in his column that he coach had lied under oath during a judicial proceeding. The state trial court ruled in favor of the newspaper and the state ap pellate court ruled on appeal that the statements were constitutionally protected opinion. The U.S. Supreme Court ruled 7-2 in favor of Milkovich, remanding the case to the Ohio courts to determine whether any false factual statements were reported. 54 501 U.S. 496 (1991) (holding that a jury is entitled to determine whet her a journalistic practice amounts to actual malice).
23 Thomas noted the slim prospect s of a pragmatics approach domi nating defamation jurisprudence, based on the hesitance of lower courts to apply the guidelines the Court outlined in those cases.55 Because meaning is central to a defamation claim, attorney Peter Wadeley has proposed that defamatory meaning be addressed by c ourts during the early stages of defamation litigation.56 He argued that courts should be required to make a ruling on meaning shortly after the close of pleadings to ensure that unnecessary litigation does not occur.57 Citing Singapore as an example, Wadeley noted that most pleadings systems have rules in place that would allow such determinations to be made.58 However, Wadeley asserted current pleading practice often encourages the plaintiff to plead the most sp ecific defamatory meaning while the defendant pleads the most general meaning of the words possible.59 Instead of allowing the parties to set the boundaries of meaning through their pleadings alone, Wadeley suggests that courts examine the meaning of the alleged statements early in the discovery process as a way to avoid needless litigation and clarify the issues, including whether a statement is defamatory, prior to a trial.60 Reputation in the Community In addition to considering the subject of the communication to determine if it is defamatory, the Restatement (Second) of Torts also requires that the statements must affect the 55 Id. at 395-96. Few lower courts have recognized the role of meaning in the constitutional law of defamation. The Milkovich opinion has been interpreted by most courts to c ontinue the substance of the fact/opinion distinction with different terminology. Id. at 395. 56 See Peter Wadeley, Taking the Uncertainty Out of Defamation Law Much Ado about Meaning, 2005 SING. J. LEGAL STUD. 373. 57 Id. at 374. 58 Id. at 375. 59 Id. at 392. 60 Id. at 394. This change of practice would, from a case ma nagement perspective, lead to significant savings in time and costs because cases that are w ithout merit would be identif ied early (and disposed of), and those cases that do proceed all the way to trial would be narro wed down to the real issues in dispute. Id.
24 plaintiffs reputation in his or her community.61 Protecting reputation as a concept is neither a recent development nor one that is unique to the United States. The value of a persons reputation has long been recognized, and can be found in works dating as far back as Shakespeares Othello, [B]ut he that filches fr om me my good name robs me of that which not enriches him, and makes me poor indeed.62 In fact, many of the prin ciples of American libel law can be traced back to its evolution from En glish common law, which sought to prevent and punish actions that cause inju ry to a persons reputation.63 The goal of defamation law is to protect reputation in societ y. As one treatise noted: There is no doubt about the hist orical fact that the inte rest in one's good name was considered an important intere st requiring legal protection mo re than a thousand years ago; and that so far as Anglo-Saxon history is concer ned this interest beca me a legally protected interest comparatively soon af ter the interest in bodily integrity was given legal protection.64 Defamation law serves a number of social functions designed to promote an orderly discourse. One primary goal of defamation law is to prot ect human dignity by providing a forum in which to counter an undeserved attack.65 As a secondary measure, defamation law can be seen as having a deterrent function to prevent false and damaging speech by providing compensation for injury to reputation.66 Another social function served through the law of defamation is to provide 61 See RESTATEMENT (SECOND) OF TORTS 559 (1977). 62 WILLIAM SHAKESPEARE, OTHELLO, act 3, sc.3. 63 See ROBERT ONEIL, THE FIRST AMENDMENT AND CIVIL LIABILITY 20-21 (2001). 64 See LAURENCE ELDREDGE, THE LAW OF DEFAMATION 53, at 293-294 (1978). 65 See Stanley Ingber, Defamation: A Conflict Between Reason and Decency, 65 VA. L. REV. 785, 791 (1979). 66 ELDREDGE, supra note 64, at 6.
25 a balance of power between the ma ss media and the average speaker.67 Defamation law provides a means of policing the media and ensuri ng the possibility of corrective speech.68 U.S. courts have frequently commented on th e importance of reputat ion. Justice Potter Stewart enunciated the im portance of reputation in Rosenblatt v. Baer : The right of a man to the protection of hi s own reputation from unjustified invasion and wrongful hurt reflects no more than our basic co ncept of the essential dignity and worth of every human being a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Nint h and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.69 Justice Stewarts remark would subseque ntly be echoed by the court again in Gertz v. Welch,70 Dun & Bradstreet v. Greenmoss Builders71 and Milkovich v. Lorain Journal .72 Justice Stewart was not the only justi ce to recognize the importance of reputation. The Court has noted in other cases that reputation is worthy of bei ng protected. Justice William Douglas mentions the value of reputation in a case where the plaintiff sued after a law enforcement official had posted notice that the plaintiff was not allowed to buy or receive liquor.73 Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.74 Despite this desire to protect a person through 67 William Van Alstyne, First Amendment Limitations on Recovery from the Press An Extended Comment on The Anderson Solution, 25 WM. & MARY L. REV. 793, 801-809 (1984). 68 See, e.g., Herbert v. Lando, 441 U.S. 153 (1979) (holding plaintiffs could inquire during discovery about editorial functions to establish actual malice). 69 See 383 U.S. 75, 92 (1966) (Stewart, J., concurring). 70 See 418 U.S. 323, 341 (1974). 71 See 472 U.S. 749, 758 (1985). 72 See 497 U.S. at 22. 73 See Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). 74 Id. at 37.
26 legal means, defamation law continues to provid e only limited remedy for those who have been defamed. This great tradition of reverence for reputation, however, has never been matched with consistency or clarity in the le gal systems protection of reputation.75 Publication The Restatement (Second) of Torts includes a requirement that a defamatory statement must be published to be considered actionable.76 The Restatement defi nes publication to include the intentional or negligent transmission of message to a person other than the one whom the message is about.77 As a result, the courts and legal sc holars have devoted significant energy to discussing what constitutes a publication and whether a plaintiff should be allowed to sue for each and every defamatory publication. The publication issues in traditional print and broadcast defamation are similar to those raised by online defamation. Among the most discu ssed issues is the si ngle publication rule, which has been adopted by numerous states under the Uniform Single Publication Rule.78 Such a rule limits the amount of damages for a single publication to one lawsui t or cause of action.79 The Restatement also addresses the issue of single publication, saying that one communication 75 See RODNEY A. SMOLLA, LAW OF DEFAMATION 1:1, 1-4. (2d ed. 1999). 76 RESTATEMENT (SECOND) OF TORTS 558 (1977). To create liability for defamation there must be: (b) an unprivileged publication to a third party. Id. 77 RESTATEMENT (SECOND) OF Torts 577. (1) Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed. (2) One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication. Id. 78 See, e.g., ARIZ. REV. STAT. ANN. 12-651 (1982); CAL CIV. CODE 3425.3 (DEERING 1984); AND FLA. STAT. 770.06 (1987). 79 Thus, if a plaintiff is defamed by The New York Times he or she may not file a separate lawsuit in each state where the defamatory article was published. Instead, he or she may sue once for the aggregate damage caused by all the publications.
27 heard by multiple people cons titutes a singl e publication.80 Similarly, one edition of a print publication or broadcast of a radio or television program constitutes a single publication.81 As a result, a plaintiff may then sue in only one juri sdiction, but may collect for damages occurring in all jurisdictions.82 Although the single publication ru le has been pretty well se ttled for traditional print and broadcast publications of defamatory material, scho lars continue to debate the application of the single publication rule to the Internet. While some have advocated the app lication of the single publication rule to the Internet,83 others have staunchly criticized applying an old rule to the new medium.84 Authors in favor of applying the rule to the Internet cite several key reasons, including the ability to easily determine when the statute of limitati ons should begin to run.85 They also note that some states single publica tion rules were specifically designed for the print media, but that courts have gradually expanded th em to adequately cover the broadcast media as well.86 Finally, they argue that a republ ication exception can be made for the Internet just as it has been made with traditional media to allow plaintiffs to sue a second time should the defamatory content be modified and republished.87 These benefits, they argue, along with 80 RESTATEMENT (SECOND) OF TORTS 577A (2) (1977). A single communication heard at the same time by two or more third persons is a single publication. Id. 81 RESTATEMENT (SECOND) OF TORTS 577A (3) (1977). Any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication. 82 RESTATEMENT (SECOND) OF TORTS 577A (4) (1977). 83 See, e.g., Lori A. Wood, Cyber-Defamation and the Single Publication Rule 81 B.U. L. Rev. 895 (2001). 84 See, e.g., Sapna Kumar, Website Libel and the Single Publication Rule 70 U. Chi. L. Rev. 639 (2003); Odelia Braun, Internet Publications and Defamation: Why the Single Publication Rule Should Not Apply 32 GOLDEN GATE U. L. REV. 325 (2002); Debra R. Cohen, The Single Publication Rule: One Action, Not One Law 62 BROOK. L. REV. 921 (1996). 85 Wood supra note 83, at 896. 86 Id. at 901-902. 87 Id. at 913-914.
28 providing some consistency for defamation law, ju stify applying the single publication rule to the Internet. Critics of applying the single publication to the Internet argu e that the char acteristics of the medium provide such a contrast to those of th e traditional media that application of the rule does not make sense. In comparing the Internet and traditional media, scholars have noted that the Internet is a more pervasive, and potentially more permanent medium, than print, which often makes a short-lived, temporary impact.88 Additionally, there may be other, more appropriate, remedies for defamatory content on Web sites. For example, one author points to the ability to remove content from the Web in contrast to the ab ility to regain control of every copy of a print publication as a justification for stronger ta ke-down requirements instead of the single publication rule.89 Based on these factors, the potential for widespread damage to reputation from Internet publications, critics have asserte d, is strong enough to ju stify not applying the single publication rule to online defamation. Fault Since the Supreme Courts decisions in New York Times v. Sullivan90 and Gertz v. Welch ,91 many legal commentators have addressed the various fault standard s created by the court.92 Numerous scholars have compared actual malice, ne gligence and strict liability. Articles taking a comparative approach between defamation law in th e United States and other countries have also 88 See Braun, supra note 84, at 332-323. 89 See id 90 376 U.S. 254 (1964) (holdi ng that public officials must prove actual malice to succeed in a defamation action). 91 418 U.S. 323 (1974) (holding that private persons can succeed in defamation actions by proving negligence). 92 See, e.g., Frederick Schauer, Public Figures, 25 WM. & MARY L. REV. 905 (1983/1984) (arguing application of the New York Times actual malice standard to public figures may not be desirable); Eileen Carroll Prager, Public Figure, Private Figures and Public Interest, 30 STAN. L. REV. 157 (1977) (arguing courts need to recalibrate the balance between protecting reputation and advancing discussion of public issues in cases involving public figures)
29 been written. Indeed, legal scholars have writ ten numerous articles crit iquing and evaluating the fault standards and their im pact on defamation litigation.93 Such an article was written by law professo rs Russell Weaver and Geoffrey Bennett, who sought to compare the way American and British courts handle defamation claims.94 After studying prominent libel cases and interviewing re porters, editors and attorneys, the authors concluded that the actual malice95 standard provides adequate pr otection for the media and does not have a significant chilling effect on speech.96 They noted that American journalists do talk to their attorneys and even change articles in light of U.S. defamation law, but that the standard places no undue burden upon free expression.97 This, they said, was evidenced by the emphasis on accuracy and integrity compared with a fixation on liability.98 As a result, Weaver and Bennett would support maintenance of the current fault system that incorporates actual malice into American law, despite its current detractors.99 In further examining the effects of actual ma lice, professor W. Wat Hopkins evaluated the Supreme Courts creation of a fault structure for defamation law, looki ng specifically at the 93 See, e.g., Charles Rothfield, The Surprising Case Against Punitive Damages in Libel Suits Against Public Figures, 17 YALE L. POLY REV. 165 (2000) (arguing First Amendment princi ples preclude the awarding of punitive damages in lawsuits by public figures); John L. Diamond, Rethinking Media Liability for Defamation of Public Figures, 5 CORNELL J.L. & PUB. POLY 289 (1996) 94 See Russell L. Weaver & Geoffrey Bennett Is the New York Times Actual Malice Standard Really Necessary? A Comparative Perspective, 53 LA. L. REV. 1153 (1993). 95 Blacks Law Dictionary defines actual malice as knowledge (by the person who utters or publishes a defamatory statement) that a statement is false, or reckle ss disregard about whether the statement is true. See BLACKS LAW DICTIONARY (8th ed. 2004). 96 Weaver & Bennett, supra note 94, at 1189. 97 Id. 98 Id. 99 Id.
30 application of actual malice to public-figure plaintiffs.100 In his article, which has been cited by Smolla & Nimmer on Free Speech101 as well as a Puerto Rico appe llate court, Hopkins noted that the Supreme Court, in Gertz v. Welch referred to the involuntary public figure, to whom the actual malice requirement may be applied.102 Despite the mention, however, the Supreme Court left lower courts to fully flesh out the applica tion of actual malice to pub lic figures, including the involuntary public figure.103 As a result, there has been incons istency in the application of actual malice to similarly situated plaintiffs, with so me courts calling them involuntary public figures and others calling them private persons.104 Instead of struggling to differentiate the three categories of public figures mentioned in Gertz all-purpose,105 limited-purpose106 and involuntary107 Hopkins suggests abandoning the limitedpurpose and involuntary public figure categories.108 Under his resulting structur e, those who are public offi cials and all-purpose public figures would be required to prove actual mali ce while courts would ex amine other plaintiffs individually to determine whether ac tual malice was the proper standard.109 The focus would be 100 See W. Wat Hopkins, The Involuntary Public Figure: Not So Dead After All, 21 CARDOZO ARTS & ENT. L.J. 1 (2003). 101 See RODNEY A. SMOLLA, FREEDOM OF SPEECH 23:4 (2007). 102 See Hopkins, supra note 100, at 41. 103 Id. at 44. Lower courts, however, did not stop with so-called all-purpose involuntary public figures. Many courts established tests for demarcating involuntary public figures for limited purposes. Those tests, for the most part, focused on the involvement though involuntary of libel plaintiffs in public controversies. Id. 104 Id. at 45. 105 Gertz defined all-purpose public figures as people who occupy positions of such persuasive power and influence in society. Gertz 418 U.S. at 345. 106 Gertz defined limited-purpose public figures as people who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. Id. 107 Gertz defined involuntary public figures as people who become a public figure through no purposeful action of his own. Id. at 344. 108 See Hopkins, supra note 100, at 45. 109 Id. at 46.
31 not on the status of the libel plaintiff, but on the actions taken by that plain tiff as a participant in some matter of public or general interest.110 This approach was suggested in Rosenbloom v. Metromedia111 by a plurality of the Court. Under such a framework, judges would look at whether the matter discussed was one of public concern while a ddressing the extent of the plaintiffs involvement in the discussion to de termine whether a plaintiff qualified as a public figure.112 Professors Clay Calvert and Robert Richards asserted that a system that categorizes plaintiffs such as Centennial Olympic Park bom bing suspect Richard Jewe ll to be public figures actually harms journalism in the long-term.113 Instead of insulating th e press coverage of matters of public concern, Calver t and Richards argued that the courts decision would actually chill speech by discouraging people to provide info rmation of issues of safety and security.114 To protect private citizens, Calv ert and Richards proposed a G ood Samaritan Source rule that would allow media sources to retain their privat e person status despite being interviewed by the media.115 Such a rule would be limited in scope, ap plying only when sources ask questions posed by the media on matters of public concern and woul d serve to prohibit the courts from requiring such plaintiffs to prove actual mali ce should they later sue for defamation.116 Calvert and Roberts assert that the rule is necessary to promote speech while striking the proper balance 110 Id. 111 403 U.S. 29, 48 (1971) (plurality opinion). 112 See Hopkins, supra note 100, at 47. 113 See Clay Calvert & Richard Roberts, A Pyrrhic Press Victory: Why Holding Ri chard Jewell is a Public Figure is Wrong and Harms Journalism, 22 LOY. L.A. ENT. L. REV. 293 (2002). 114 Id. 115 Id. 116 Id.
32 between an individuals right to comment on public matters and a media outlets right to defend itself from legal action.117 Defamation Moves into Cyberspace Traditional defamation law, rooted in print and broadcast defamation, encompasses expression published by newspape rs, magazines, pamphleteers or word of mouth. The nations constitutional framework for addressing the tort stems from series of cases that began in the 1960s, long before the Internet burgeoned.118 Thus, much of the jurisprudence on the issue of online defamation is continuing to take shape. Legal scholarship, however, has been on the cusp of online defamation since the mid-1990s. These a cademic discussions have addressed numerous issues that had not cropped up in the legal system at the time, but were likely to arise in the future. These articles range from discussions of jurisdiction119 to critiques of the definition of community as it is used in litigation120 to comments on the effect of anonymous speech.121 For example, University of Florida law pr ofessor Lyrissa Lidsky posited that the courts have continued their piece-meal approach to cons tructing libel law with the Internet libel cases that have begun to make thei r way through the legal system.122 She chronicled the difficulties of courts struggling to deal with John Doe Internet cases, where small-time Internet publishers were being sued by corporations, who claimed to have been defamed. The primary legal 117 Id. 118 See, e.g., Sullivan 376 U.S. at 254; Garrison v. Louisiana, 379 U.S. 64 (1964); Rosenblatt 383 U.S. at 75; Ashton v. Kentucky, 384 U.S. 195 (1967); Curtis Publishing v. Butts, 388 U.S. 130 (1967); St. Amant v. Thompson, 390 U.S. 727 (1968). 119 See Stephen Wilske and Teresa Schiller, International Jurisdiction In Cyberspace: Which States May Regulate The Internet?, 50 FED. COM. L.J. 117, 140 (1997); R. Timothy Muth Old Doctrines On A New Frontier: Defamation and Jurisdiction In Cyberspace, WIS. LAW. 10, 11 (Sept. 1995). 120 See Lyrissa Barnett Lidsky, Defamation, Reputation and the Myth of Community, 71 WASH. L. REV. 1 (1996). 121 See Wilson, supra note 13, at 533. 122 See Lidsky, supra note 8, at 855.
33 deficiencies, Lidsky asserted, were the uncertain levels of First Amendment protection given to John Doe defendants, the unknown degree to which co rporations and other plaintiffs could be treated as public figures and th e wavering role that context play ed in determination of objective facts.123 Jurisdiction Given the Internets global na ture, one of the first issues to crop up in online defamation cases was jurisdiction. Jurisdiction is commonly thought of in the legal field as having two distinct definitions, both of wh ich have entangled courts and le gal scholars. First, jurisdiction refers to a government's general power to exerci se authority over all persons and things within its territory.124 Second, it can also include a court's power to decide a case or issue a decree.125 Thus, in an online defamation action, it must first be asked whether the court has the ability to exercise authority over a person, known as personal jurisdiction. Additionally, the court must consider whether it has the legal authority to address the issues of the case, known as subject matter jurisdiction. Much of the literature in the area of jurisdiction focuses on th e second type of jurisdiction. In his 2006 article, professor Eric Barendt examined the ability of foreign courts to exercise jurisdiction over online defamation cases arising in the United States.126 After examining key decisions in Australia, Engla nd and Canada, Barendt outlined th ree approaches that could be taken in online defamation cases.127 The first approach gave sole jurisdiction to the location in 123 Id. at 945. 124 See BLACKS LAW DICTIONARY (8th ed. 2004). 125 See id. 126 See Eric Barendt, Jurisdiction in Internet Libel Cases, 110 PENN. ST. L. REV. 727 (2006). 127 Id. at 733.
34 which the defamatory communication was created.128 Basically, this approach represented an offshoot of the American single-publication rule,129 in which a plaintiff must choose one location in which to file suit with the goal of avoiding a multiplicity of defamation actions.130 The second jurisdictional approach focused not on wh ere the defamatory communication was first communicated, but instead upon where it was directed.131 Such a targeted approach has been taken by American courts in several cases, including Young v. New Haven Advocate .132 The third plausible approach was based on the notion of fo reseeability. Under this method, courts could maintain jurisdiction in cases where the defendant should have foreseen that the claimant would suffer a loss to reputation rights in the forum state as a result of computer users' downloading the allegations.133 This strategy was employed by the Hi gh Court of Australia when it decided Dow Jones v. Gutnick.134 Concluding that it is unlikely one of the three jurisdictional approaches would be adopted everywhere, Barendt suggested that a countrys courts be more flexible in their approach to jurisdiction by relying on the doctrine of forum non conveniens135 for guidance.136 128 Id. In Internet cases, the state of initial publication wo uld be the state where a defamatory message was first placed on a server; the courts of another state would have to disclaim jurisdiction, even if an action was brought by a plaintiff wholly resident in that state and the communication was directed to its public. Id. 129 RESTATEMENT (SECOND) OF TORTS 577A (2) (1977). A single communication heard at the same time by two or more third persons is a single publication. Id. 130 See Barendt, supra note 124, at 733 131 Id. at 734. Courts in the forum could only exercise jurisdiction in Internet (or other) libel suits emanating from another state when it is clear that the defendant has tar geted the communication at readers in the forum state. Id. 132 315 F.3d 256 (4th Cir. 2002) (holding West Virginia cour ts lacked jurisdiction in a libel case brought by a prison warden regarding allegations published by a Connecticut newspaper on its Web site concerning treatment of Connecticut prisoners in West Virginia jails). 133 Id. at 735. 134 Dow Jones & Co. v. Gutnick, (2002) 210 CLR 575 (rejecting the defendants claim that New Jersey law should apply in the case because of the lo cation of the defendants servers). 135 The doctrine that an appropriate fo rum even though competent under the law may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum
35 Professor Patrick J. Borchers addressed the lack of bright-line jurisdictional rules for online defamation claims.137 In his article, Borchers suggested that the courts should not rely on the malleable constitutional guidelines create d by weaving together U.S. Supreme Court opinions.138 Instead, he suggested that the best me thod for creating predictable outcomes in personal jurisdiction issues is to construct a framework through state or federal legislation.139 Citing New York as an example, Borchers ex plained that excluding lib el defendants from farreaching long-arm statutes140 may create some hardships initia lly, but would save considerable resources in the long-run by resolving any preliminary questions about jurisdiction.141 Alternatively, he suggested the less radical approach resembli ng the single-publication rule, which also was considered by Barendt. Anonymity The idea of anonymous and pseudonymous wr itings has a long history in the United States, tracing back to the era of the American Revolution. Numerous examples of such writings can be found in any study of American hist ory, from Thomas Paines anonymous Common in which the action might also have been properly brought in the first place. See BLACKS LAW DICTIONARY (8th ed. 2004). 136 Barendt, supra note 124 at 739. 137 See Patrick J. Borchers, Internet Libel: The Consequences of a Non-Rule Approach to Personal Jurisdiction, 98 NW. U. L. REV. 473 (2004). 138 Id. at 489. The highly fact-specific nature of the Su preme Court's jurisdictional jurisprudence invites the drawing of narrow distinctions. The larg ely judicially-created nature of jurisd ictional principles in the United States inevitably produces the sort of uncerta inty that has emerged in this area. Id. 139 Id. at 490-492. One obvious solution would be for long-arm statutes to be modified to prohibit the exercise of long-arm jurisdiction over non-resident libel defendants. Id at 491. 140 Blacks Law Dictionary defines long-arm statutes as A statute providing for jurisdiction over a nonresident defendant who has had contacts with the territory where the statute is in effect. See BLACK'S LAW DICTIONARY (8th ed. 2004). 141 Borchers, supra note 137, at 490-491.
36 Sense142 to Publius pseudonymous Federalist Pape rs, a collection of writings by Alexander Hamilton, James Madison and John Jay.143 For many of the anonymous or pseudonymous writers, the cloak behind which they wrote insulated them from punishment. In modern times, the Internet has contribute d to the rise of anonymous speech, allowing users to e-mail, chat and blog using either a fictitious identity or no identity at all. During the late 1990s and into 2000, a flurry of cases involving companies seeking to uncover the identity of anonymous Internet communicators entered the court system.144 In 2002, professors Margo E.K. Reder and Christine Neylen OBrien examined th ese lawsuits and concluded that a piecemeal approach to determining whether a defendants identity could be revealed undermined the predictable nature of the legal systems rules.145 The authors suggest th at a method of providing a uniform approach to allowing the discovery of anonymous posters identiti es would be to adopt the test established by Judge MacKenzie and refined by the Ne w Jersey Superior Court in Dendrite International v. John Doe 3 There, the court established a three-part test to determine whether to compel disclosure of a persons identity.146 First, a trial judge must require plaintiffs to make an effort to notify anonymous pos ters that they have been subpoenaed.147 Second, the plaintiffs must delineate the ex act statements posted by the anonym ous speakers that the plaintiff 142 ISAAC KRAMNICK, EDITOR'S INTRODUCTION TO THOMAS PAINE, COMMON SENSE 29 (Penguin Classics 1976). 143 CLINTON ROSSITER, INTRODUCTION TO THE FEDERALIST, at ix, xv (Clinton Rossiter, ed. 1961). 144 See, e.g. Dendrite International, Inc. v. John Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div., 2001); Melvin v. Doe, 836 A.2d 42 (Pa. 2003). 145 Margo E.K. Reder and Christine Neylon O'Brien, Corporate Cybersmear: Employers File John Doe Defamation Lawsuits Seeking the Id entity of Anonymous Empl oyee Internet Posters 8 MICH. TELECOMM. TECH. L. REV. 196, 217 (2002). 146 Dendrite 775 A.2d, at 771-772. 147 Id.
37 believes are actionable.148 This essentially requires a prima facie showing for the desired legal action.149 Finally, the court must balance the defe ndants First Amendment right to speak anonymously with the strength of the plaintiffs ca se as well as the plaintiffs need for the disclosure.150 Doing so, the authors posit, would properl y balance speech and privacy rights with the right to protect reputational interests.151 More recently, Lidsky and University of Minne sota law professor Thomas Cotter provided guidance to legislators about dr afting legislation that targets the disclosure of anonymous speakers.152 They suggested that both the First Amendment and democratic theory weighed in favor of protecting anonymous core speech political and social speech because current precedent would require that the government assert a compelling interest to mandate disclosure of a speakers identity.153 In addition, they suggested the creation of an evidentiary privilege, based loosely on that developed by the Delaware Supreme Court in Doe v. Cahill which would provide some protection for defendants to preven t plaintiffs from merely alleging wrongdoing to uncover a speakers identity.154 The first part of the privil ege would require notice to the speaker.155 This would allow a potential defendant to a ttempt to protect his or her identity before it is revealed by placing the onus on either the plaintiff or the Internet Service Provider to 148 Id. 149 Id. 150 Id. 151 See Reder & O'Brien, supra note 145, at 217. 152 See Lyrissa Barnett Lidsky & Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech 82 NOTRE DAME L. REV. 1537 (2007). 153 Id. at 1539-1540. 154 Id. at 1596. 155 Id. at 1598.
38 attempt to notify the defendant either by posts on the same Web site or using customer information as contact information. The second st ep requires the courts to determine if an anonymous speaker is legally protected under an absolute or qualified privilege, which would protect the speaker from legal punishment.156 If so, the burden then shif ts to the plaintiff, who must overcome such a privilege.157 Under the third step, a plai ntiff may overcome a defendants privilege to speak anonymously by making a prima facie showing of his or her case.158 Finally, Cotter and Lidsky suggest adding a step that requ ires the court to balance the harm to the defendant before revealing his or her identity.159 In this instance, even if the plaintiff presented a prima facie case that overcame the defendants pr ivilege, the defendant would have one last opportunity to demonstrate any harm that may come to him or her based on the revelation of his or her identity.160 ISP Immunity Under the Communications Decency Act In part because of the initial difficulty of suing anonymous John Doe defendants, the early litigation focused on suing the Internet Service Providers, including CompuServe161 and Prodigy.162 In the midst of the courts developing juri sprudence in the Inte rnet arena, Congress undertook a legislative re-working of the 1934 Co mmunications Act, which would become the 156 Id. at 1599. 157 Id. 158 Id. at 1600-1601. 159 Id. at 1601. 160 Id. 161 See Cubby v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991) (holding that because CompuServe was merely a distributor of information, it would not be appropriate to hold CompuServe liable for any defamatory statements unless it could be proven that CompuServe should have known of the content). 162 See Stratton Oakmont v. Prodigy Services Co., unpublished at 1995 WL 323710 (N.Y. Sup. 1995) (holding Prodigy to be a publisher of content on its Money Talk bulletin board for the purpose of this defamation lawsuit and therefore potentially liable).
39 Telecommunications Act of 1996.163 The act, which contained a section known as the Communications Decency Act, was the first majo r overhaul of federal electronic communication law in more than six decades. In it, Congre ss addressed a variety of topics, but the most pertinent provisions to defamatory speech on th e Internet are contained in Title V of the Telecommunications Act, known as the Communicat ions Decency Act. Within Title V, Section 230, the Good Samaritan Act provisions immunize se rvice providers from liability for torts committed by their users over the network. This provision, which addresses the heart of the Prodigy and Cubby cases, was quickly the target of litigation164 and scholarship. Attorney Paul Erlich argued that the courts subsequent interpretations of congressional legislation contravenes the lawmakers intent to immunize only a se lect portion of those communicating on the Internet.165 Reading the statute broadl y, judges have lumped both publishers those who assemble, edit and print content and distributors those who merely sell or make available content t ogether under the cloak of immunity.166 As a result, Internet Service Providers and other interactive services are no longer the target of lawsuits based on content created or distributed by third parties. Such a regime Erlich argued, is not enough to protect against the danger s of defamatory speech.167 After the Supreme Court ruled in Zeran v. America Online that Section 230 provided full immunity fo r interactive comput er services, lower 163 Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). 164 See Zeran v. America Online 129 F.3d 327 (4th Cir. 1997), cert. denied 524 U.S. 937 (1998) (upholding the constitutionality of Section 230 of the Communications Decency Act). 165 See Paul Erlich, Cyberlaw: Regulating Conduct on the Internet 17 BERKELEY TECH. L.J. 401 (2002). 166 Id. at 401-402. The effect of these rulings has been the emergence of a comprehensive immunity from suit for ISPs so long as the suits are based on content not authored by the ISP. Whether or not Congress intended this result, ISPs and other interactive computer services have used Section 230 as a complete defense against recent suits. Id. at 402. 167 Id. at 402.
40 courts began applying Section 230s protections in other areas of the law as well, including cases dealing with distributor negligence168 and criminal sales of materi als in violation of copyright laws.169 Such broad interpretations ha ve created a sweeping rule to limit liability for numerous types of speech on the Internet, including defa matory speech. Instead, Erlich argued, speech should be categorized and then regulated based on those categories becau se immunity may work to deter one type of speech but not another.170 Erlich argued that the te xt of Section 230 supports the notion of distributor liability because of its explicit use of speaker and publisher, which follow the traditional defamation law framework for liability.171 A less dramatic change suggested by Erlich would be to retain the immunity for ISPs but reduce the difficulty associated with obtaining the identity of the anon ymous posters of defamatory materials.172 To prevent a chilling effect on speech, he w ould require that courts make a finding based on the defamatory nature of the speech,173 much akin to the approach subseque ntly taken by some courts in their anonymous online defamation jurisprudence. North Carolina law student Megan M. Sunkel proposed another solution to address ISP immunity that has been referenced by at le ast one court deciding an online defamation case.174 In her article, Sunkel drew commonaliti es between the disclosure issues faced in online defamation 168 See Doe v. America Online, 783 So. 2d 1010 (Fla. 2001). 169 See Stoner v. Ebay, 87 Cal. App. 4th 684 (Cal. Ct. App. 2001). 170 Erlich, supra note 165, at 409-410. 171 Id. at 409. 172 Id. at 419. 173 Id. [A]nonymity would only be removed if statements were proven to be defamatory or otherwise unlawful. Since that type of speech (defamatory speech) is not protected by the Firs t Amendment outside of the Internet, discouraging its existence on the Internet is not problematic. At the very least, a specific disincentive is preferable to the broad filtering distributor liability would promote. Id. 174 Megan M. Sunkel, Note, And the I(SP)s Have It But How Does One Get It 81 NO. CAR. L. REV. 1189 (2003) ( cited in McMann v. Doe, 460 F. Supp. 2d 259, 265 (D. Mass. 2006).
41 cases and those in reporters privilege cases.175 ISPs, she asserted by ci ting early case law in the area, are more like newspapers than common ca rriers such as telephone companies. Noting the ability of both newspapers and ISPs to exert editorial control, Sunke l argued that imposing liability on ISPs like imposing liability on news papers would discoura ge the publication of inaccuracies and untruths.176 Based on this notion, Sunkel argued that courts could reason that Internet speech is of less va lue than journalistic speech, where by allowing the courts to more readily disclose the names of anonymous speakers.177 Instead, she argued c ourts should weigh the right to anonymity and the chil ling factor with the need of th e plaintiff to access the identity of the anonymous speaker, in much the same wa y scholars and courts have suggested these competing interests be balanced in reporters privilege cases.178 In his article, attorney Jonathon Band criticized the courts for their seemingly contradictory interpretations of the Communica tions Decency Act and the Digital Millennium Copyright Act.179 While the courts have interpreted the CDA broadly, providing large-scale immunity for interactive computer services, they have construed the DMCA in a narrow fashion that exposes the same providers to liability in intellectual property lawsuits.180 One of the results of such a judicial in terpretation, he contended, was th at courts are providing more 175 Sunkel, supra note 174, at 1213-1218. 176 Id. at 1217. 177 Id. at 1218. 178 Id. at 1218. The appropriate test is that a company, asking for identifying information from an online user's ISP, must prove that the information sought is relevant, goes to the heart of the company's claim, and is unavailable from any other source. This test requires a case-by-case determin ation that the plaintiff is, in good faith, bringing the subpoena only after exhausting other means of gaining the information itself. Id. 179 See Jonathon Band & Matthew Schruers, Safe Harbors Against the Liability Hurricane: The Communications Decency Act and the Digita l Millennium Copyright Act, 20 CARDOZO ARTS & ENT. L.J. 295 (2002). 180 Id. at 295. The divergence is disturbing because it suggests that the courts believe that copyrighted works deserve more protection than the individuals harmed by the torts falling within the scope of the CDA. Id.
42 protection for intellectual property creators than they are for those who are tortuously injured by defamatory speech.181 Along the same lines, he cautioned cour ts not to simply provide a free pass to ISPs, allowing those who simply turn a blind eye to copyright infringement to escape from liability under the DMCA.182 Like Band, Duke University law student Ry an King also criticized the public policy implications of the Communications Decency Act in his 2003 article.183 King argued that the CDAs immunization of service providers from p ublisher and distributor liability contravenes public policy. To correct this imbalance, King asse rted the need for a br oader interpretation of the development and take down and put back provisions to bring service providers under the same liability standards as traditional print content providers. Doing so, he posited, would provide a better method of prot ecting reputational in jury by acknowledging th e pervasive nature of the Internet community. Such an approach w ould also be akin to the approach taken in enforcement of the Digital Millennium Copyright Act. Similarly, attorney Joshua Masur noted in 2000 that Judge Paul Friedmans decision in Blumenthal v. Drudge that immunized AOL from liability for Matt Drudges comments crippled Internet libel law by preventing individuals from adequately pr eserving their reputations from online injury.184 Masur argued that the deci sion in Blumenthal unnecessa rily concluded that the CDA intended to protect all online service provi ders. Instead, he asse rted the language was 181 Id. at 319. 182 Id. In contrast, if they do not become more careful, th e courts may degrade the DMCA into a "one free pass" rule: An ISP would be immune from liability so long as it remained in a state of blissful ignorance, but once it received the first notice of infringi ng activity, it would be on notice co ncerning the possibility of future infringements. Id. 183 Ryan W. King, Note, Online Defamation: Bringing the Communications Decency Act of 1996 in Line with Sound Public Policy, 2003 DUKE L & TECH. REV. 24. 184 See Joshua M. Masur, A Most Uncommon Carrier: Online Service Provider Immunity Against Defamation Claims in Blumenthal v. Drudge, 40 JURIMETRICS J. 217 (2000).
43 designed to immunize content providers who ch ose not to police content on their sites.185 The Blumenthal rule, by contrast, protected AOL desp ite AOLs active involvement in publication of The Drudge Report Masur argued that the courts altern ative would have been to find AOL acted as a content provider and not merely an online service provider.186 Doing so would have allowed the court to treat AOL as a publis her, not a common carr ier, under the law.187 This categorization based on function would allow the courts to pr ovide immunity in cases of omission but revoke immunity in cases of commission: Functional line-drawing appears to be the onl y fair, effective, and accurate manner to interpret the statute. Differentiating a common ca rrier acting as such from one that acts as a republisher provides immunity where appropriate yet maintains liability where immunity is inappropriate.188 Northwestern University law professor John L. Hi nes argued that current First Amendment law, as well as statutory immunity for service pr oviders under Section 230 of the Communications Decency Act, inhibits a corpor ations ability to protect itse lf from corporate cybersmear.189 Recognizing the limited likelihood of changing thos e laws, Hines suggested there are other ways to address issues of corporate cybersmear that ma y be nearly as effectiv e. Interestingly, one of the suggestions was speech-promoting and the othe r was speech-inhibiting. He first suggested allowing more conversation and exchange in th e workplace to reduce employee hostility, a prime fuel for the purveying of corporate cybersmear.190 But he also suggested some contractual 185 Id. at 218. 186 Id. at 225. 187 Id. at 226. 188 Id. at 227. 189 John L. Hines et al., Anonymity, Immunity and Online Defamation: Managing Corporate Exposures to Reputation Injury, 4 SEDONA CONF. J. 97 (2003). 190 Id. at 104-105.
44 obligations on employees to reduce the risk of derogatory speech about corporations, which would limit the amount of speech overall.191 Community One of the greatest challenges to the legal system is the way in which the Internet has changed the traditional definitions of community re lied upon by the courts in their jurisprudence. Although scholars have examined this development in a variety of First Amendment areas, most pages on the subject have been dedicated to obscenity and defamation. The obvious reason for this is the prominence played by community in the definitional elements of both legal concepts. In the tort of defamation, the importance of community lies in the determination of whether a statement injures someone s reputation as well as whet her a person is a public figure. In fact, whether a statement is actually defamatory depends on whether it lowered a persons esteem in a given community. In her article Defamation, Reputation and the Myth of Community Lidsky argued that to make such a determin ation in defamation, courts often construct a fictionalized community that does not really exist in society in the manner that the court has imagined it to exist.192 She pointed to two types of cases in which these judicial fictions are particularly troublesome: cases where the values of the plaintiffs community contravene societal norms and cases where the values of the plaintiffs community are in a state of flux. To address these issues, Lidsky made several suggestions. First, she asserted that the abolition of presumed harm would redirect defamation, like other torts, in a manner that would compensate for actual harm as opposed to righting presumed wrongs.193 Additionally, Lidsky posited that courts could 191 Id. at 106. 192 See Lidsky, supra note 120, at 44. 193 Id. See also Anderson supra note 1 (criticizing reliance on presumed harm as opposed to compensating only for actual injury).
45 require a plaintiff to plead and prove relevant community, to bette r ensure that the plaintiffs reputation was actually harmed.194 Both of these suggesti ons could have significant consequences for online defamation cases. Plaintiff Status Similarly, another significant area affecting onl ine defamation is the public person/private person dichotomy. Not only have the courts stru ggled to apply this concept in traditional defamation cases,195 they have had difficulties categoriz ing plaintiffs when a case involves online speech.196 In a 2005 article published in Wired magazine, Iowa law professor and libel scholar Randy Bezanson criticized a decision by Florida Circuit Court Judge Karen Cole, which held a plaintiff to be public figure based largely on Internet chatter about her legal dispute over her husbands medical state.197 (Someone doesn't) become a public figure just because a newspaper or some part of the media picks (a st ory) up and makes a big deal of it, he asserted, but one might imagine that there's going to be a lot more public figure issues that arise, and 194 See Lidsky, supra note 120, at 45-46. If the plaintiff's friends or family or social group holds values antithetical to those of the judge, the jury, or the dominant culture generally, the plaintiff should be allowed to prove that the defendant's communication was defamatory within the relevant community (that is, the community relevant to him) even if not defamatory in American society generally. This pleading requirement would be loosely analogous to a cultural defense in criminal law. Id. 195 See Atlanta Journal-Constitution v. Richard Jewell, 555 S.E.2d 175 (Ga. Ct. App. 2001) (holding that a security guards public appearances made him a voluntary limited-purpose public figure for the purpose of his defamation action against a newspaper). Even if the trial court erred in finding that Jewell was a voluntary limited-purpose public figure, the record contains clear and convincing evidence that, at the very least, Jewell was an involuntary limited-purpose public figure. Id. at 186. 196 See Thomas v. Patton, 34 Media L. Rep. 118 8 (Fla. Circ. Ct. 2005); Randy Dotinga, Are You a Public Figure? WIRED (Nov. 9, 2005), at http://www.wired.com/news/politics/0,69511-0.html. 197 Dotinga, supra note 196. Bezanson said the judge made a bad d ecision because Thomas didn't act to inject herself into a public controversy one of the criteria for determining a public figure but was simply trying to protect her rights. Id.
46 there may be a rise in the number of libel suit s because the volume of talk has been greatly increased.198 Scholars, too, have discussed the di fficulty of such categorizations.199 For example, in traditional print and broadcast defamation cases, the courts have ruled both ways in the case of college professors, with some holding they are p ublic persons and others holding they are private persons.200 Additionally, the complicated nature of the Internet community has increased the difficulty of such determinations, making the ar ea of online defamation ripe for further study. Research Questions Although current literature ha s attempted to answer many questions related to online defamation, some matters still remain untouched. Th e Internet raises complex issues in the areas of anonymous speech, jurisdiction and enforcement as well as difficulties ascertaining definitions of community, harm and plaintiff status. Pages of scholarship and court opinions have analyzed anonymity and jurisdictional issu es, but very little work has been done in the areas of community, harm and plaintiff status. To date, fe w scholars have examined these concepts in the context of traditional print and broadcast defamati on, and even fewer have looked at their role in 198 Id. 199 See Andrew Turscak, School Principals and New York Times: Ohios Narrow Reading of Who is a Public Official or Public Figure 48 CLEV. ST. L. REV. 169 (2000); H.W. Stonecipher et al., A Survey of the Professional Person as Libel Plaintiff: Reexamination of the Public Figure Doctrine, 46 ARK. L. REV. 303 (1993); Patricia Fetzer, The Corporate Defamation Plaintiff as First Amendment Public Figure: Nailing the Jellyfish, 68 IOWA L. REV. 35 (1982). 200 In these cases, the courts have held professors to be public persons: Klahr v. Winterble, 418 P.2d 404 (Ariz. App. 1966), Gallman v. Carnes, 497 S.W.2d 47 (Ark. 1973), Abdelsayed v Narumanchi, 668 A.2d 378 (Conn. App. 1995), Kelley v. Bonney, 606 A.2d 693 (Conn. 1992), Johnson v. Board of Junior College Dist. #508, 334 N.E.2d 442 ( Ill. 1st Dist. 1975), Basarich v. Rodeghero, 321 N.E.2d 739 (Ill. 3d Dist. 1974), Davis v. Borskey, 660 So.2d 17 (La. 1995), Hicks v. Stone, 425 So.2d 807 (La. App.1st Cir. 1982), Van Dyke v. KUTV, 663 P.2d 52 (Utah 1983), Baxter v. Doe, 868 So.2d 958 (La. App. 2d Cir. 20 04), Fortenbaugh v. New Jersey Press, Inc., 722 A.2d 568, (N.J. App. Div. 1999). In the following cases, the court held the plaintiffs to be private persons: Foote v. Sarafyan, 432 So.2d 877 (La. App. 4th Cir. 1982), Staheli v Smith, 548 So.2d 1299 (Miss. 1983).
47 online defamation jurisprudence. Relying on lega l research as a methodol ogical approach, this study will seek to answer these research questions: What are the significant issues for online de famation that have not been adequately addressed in the sc holarly literature? How do the courts define the notions of community, harm and plaintiff status in defamation cases that do not involve online defamation? How do the courts define the notions of comm unity, harm and plaintiff status in online defamation cases? What considerations are important when the co urts try to define th e notions of community, harm and plaintiff status in online defamation cases? What issues are important to consider when balancing reputation and the First Amendment? Methodology A thorough analysis of these research questions requires a discussion of the role of the courts in addressing new media tec hnologies such as the Internet as well as traditional print and broadcast defamation cases. In addi tion, parallels can be drawn from the scholarly literature in other areas of defamation law, including those de aling with injury to bus iness reputation. To do this, the author will employ le gal research methodology. Constitutio nal law, statutory law and common law will be analyzed in this study. The primary resources relied upon include the U.S. Constitution, federal statutes and federal court de cisions. State court rulings, as well as some state statutes, will be used to supplement the fe deral materials. Secondary materials, including scholarly legal and social scientific research, also will serve as references. Computerized legal-research services Lexi s-Nexis and Westlaw were used to retrieve scholarly articles, court opinions an d statutory laws. The author uti lized specific search strings to obtain most of the research materials.
48 Secondary Sources To locate journal articles, the author util ized the Westlaw Journals and Law Review database, searching with the t itle strings TI(online & defama tion), TI(cyber & defamation), TI(Internet & defamation), TI(community & defamation), TI(harm & defamation), TI(anonymous speech), TI(cybertort), TI(pub lic figure), TI(public official), TI(private person) and TI(anonymity) to loca te all articles with those word s contained in their titles. The keyword search strings online defamation /p community, online defamation /p harm, online defamation /p injury, online defamation /p injury to reputation, online defamation /p public figure, online defamation /p public official, online defamation /p private person were used to locate all the arti cles with those two phrases cont ained within the same paragraph. The term Internet was substituted for online in all of the above searches and the word libel was substituted for defamation. In most instance s, the author disregarded Case Notes and law student Commentary articles that have not contributed significan tly to the discussion of online defamation. Several student works were utilized b ecause they had been cited by courts in recent case decisions or had covered an aspect of the li terature that other scho lars had not addressed. Westlaws News database was also utilized to uncover popular press articles about ratings Web sites and online defamation. Using the ALL NEWS database, the author entered multiple search strings mentioned above. Ratemyprofesso r as a search string turned up a number of articles mentioning the Web site. The term onlin e defamation was used with some success as well. The author also explored the Social Scie nce Research Network online to find working papers in the topic area. This was done by sear ching the Legal Research Network arm of the Social Science Research Netw ork Web site, www.ssrn.org. The aut hor entered a title keyword
49 search to obtain all working papers with the term defamation in the title. A few papers, including a working paper that became the Lidsky and Cotter article, were uncovered. Finally, a search of theses and dissertations was conducted. Using the ProQuest theses and dissertation online database, the au thor ran several searches. Strings for these searches included Internet AND defamation as well as the sear ches mentioned above. Basic searches for defamation and libel were also conducted in ProQue st to turn up relevant articles. None of the articles dealt directly with the issues examined in this study. When no relevant hits were returned during a search to locate terms within the same sentence or paragraph, the resear cher broadened the search to include documents where the key phrases were located anywhere within the same document. Additionally, specific citations were retrieved based on footnotes located within the initial articles. Fi nally, the researcher utilized citations in scholarly articles as references to primary sources including state court cases and other materials. Primary Sources To locate primary sources, the research began with case law. Using the ALL FEDS database, the author searched for opinions from all levels of the federal courts. The search strings online defamation /p injury, online defamati on /p harm, online defamation /p community, online defamation /p anonymity, online defama tion /p private figure, online defamation /p public figure, online defamation /p jurisd iction were used to locat e any federal case with those terms in the same paragraph. Cyberdefamation was also substituted for online defamation in each of the search strings as we re online libel, Inter net libel and Internet defamation. The same approach was taken us ing the ALL STATES database of cases. Additional specific citations were also retrie ved after the author Sh epardized major U.S. Supreme Court libel rulings, including New York Times v. Sullivan Curtis Publishing v. Butts,
50 Hutchison v. Proxmire and Gertz v. Welch Additional lower court ru lings were also located using this methodology. Finally, some cases we re located using citations from secondary sources. Dissertation Outline Chapter 2 of the dissertation, titled The In ternet as a Medium of Mass Communication, discusses the development of the Internet. It prov ides an overview of the history of the Internet, including its adoption as a mass medium. It al so addresses legal complications created by Internet speech, including those of anonymity, jurisdiction and immunity for Internet Service Providers. Chapter 3, titled The Internet and First Amen dment Theory, discusses the role of the Internet in the exchange of ideas It begins with an overview of the marketplace theory, from its European origins to its modern-day application in U.S. courts. This section examines both the speech-promoting aspects of marketplace theory as well as the access component of marketplace theory that can inhibit speec h. The chapter also examines Alexander Meiklejohns selfgovernance theory, Vincent Blas is watchdog conception of the First Amendment and Thomas Emersons self-fulfillment theory. All of these theories, along with the marketplace of ideas justification for the First Amendm ent, have been previously used by the courts to develop First Amendment jurisprudence. In add ition, they can be used as guid ing pillars to suggest a proper framework for the regulation of online defamation. Chapter 4 of the dissertation, titled Defining Community, examines the definition of community in online defamation jurisprudence. By using defamation precedent before and after the rise of Internet communications, this chapte r evaluates current conceptions of community. Chapter 5 of the dissertation, titled Defini ng Plaintiff Status, examines the public person/private person dichotomy in online defa mation jurisprudence. By using defamation
51 precedent before and after the ri se of Internet communications, this chapter evaluates current conceptions of plaintiff status. Chapter 6 of the dissertation, titled Defining Harm, examines the definition of harm in online defamation jurisprudence. By using defamation precedent before and after the rise of Internet communications, this chapter ev aluates current conceptions of harm. Chapter 7, the dissertations Conclusion, serves to summari ze the findings of Chapters 2, 3, 4, 5 and 6. In addition, it examines the prope r framework for the regulation of defamatory speech on the Internet, including the proper role of the courts in developing the Internet as the modern-day marketplace of ideas and the role of First Amendment theory in developing defamation constructs. Areas for future res earch are also include d in this chapter.
52 CHAPTER 2 THE INTERNET AS A MEDIUM OF MASS COMMUNICATION What began in the 1960s as a Massachusetts Institute of Technology research project on packet switching, or the ability to transfer small bundles of info rmation from one computer to another,1 has morphed into a worldwide tool that allo ws millions of users to send text, video and audio signals in real-time.2 This tool is known as the Inte rnet. Technically speaking, though, the Internet is merely the system used for such communication. It is: a collection of high-speed communication ca bles and dedicated computers, known as routers, that control the flow of information over those high -speed cables. Together, the cables and routers constituted an object know n as the backbone, and there is a narrow technical sense in which the Internet c onsists of the backbone and nothing more. Everything else is a more or less local netw ork, which may have facilities for wide area access but is not the Internet.3 What most people think of as the Internet, instead refers to the entire system that allows the communication process to occur via a series of networks.4 America Online, CompuServe and Prodigy are not the Internet, but are instead Internet Service Providers (ISPs) that allow users to connect to the backbone of this system of networks.5 Netscape Communicator, Internet Explorer and Mozilla Firefox are not the Internet, but are instead Internet browsers that allow users to visualize the information they access from this system of networks.6 To know what the Internet is requires an unders tanding of how it came about and how it currently operates. This chapter discusses the history of the Internet, from its inception as a government-funded network 1 The Internet Society. All About the Internet: History of the Internet 1, at http://www.isoc.org/internet/his tory/brief.shtml#Introduction (last visited Sept. 2, 2006). 2 See MATTHEW COLLINS, THE LAW OF DEFAMATION AND THE INTERNET 20-30 (2d ed. 2005). 3 See KEVIN J. CONNOLLY, LAW OF INTERNET SECURITY AND PRIVACY 11 (2003). 4 Id. 5 I d. 6 Id. at 12.
53 to its modern-day, highly unregulated form as a medium of mass communication. It also addresses some of the benefits and consequences of having a hi ghly unregulated medium of mass communication, looking specifically at the im plications of anonymous speech and the jurisdictional issues that occur in litigati on arising out of Internet communications. History of the Internet Like most major technological advancements, the Internet was not created in one quick discovery, but was developed through changes and adaptations of t echnology over time. The development of the Internet can be traced back to the creation of ne tworking, which allowed computers that had previously worked in se clusion to communicate with other computers.7 Thus, the Internet got its start from a series of small networks much like the networks that link a computer to a printer through a series of wire s and cords. These networks allowed multiple computers to interface, which pr ovided the ability to transfer information between users and share software among the machines.8 This creation of small networ ks would eventually lead to much larger networks, and eventually the Internet as we know it today. Early Computer Networks The first step to creating the Internet woul d require that one computer be able to communicate with another computer. The creatio n of Local Area Networks (LANs) and the use of coaxial cable9 or telephone lines allowed groups of computers in the government to communicate.10 Much of the early research on netw orking occurred in the government and 7 COLLINS, supra note 2, at 9. 8 Id. 9 Coaxial cable is a transmission line that consists of a tube of electrically conduc ting material surrounding a central conductor held in place by in sulators and that is used to transmit telegraph, telephone, and television signals. See Merriam Webster Dictionary Onlin e, at www.m-w.com/dictionary. 10 COLLINS, supra note 2, at 9.
54 academic sectors to develop a means of instan tly communicating data despite geographical distance.11 To bridge these distances, LANs were only marginally helpful as they were constrained by the spatial limitations of stringi ng together cords and wires to connect one computer to another in small netw orks based on proximity of location.12 LANs were also limited by the fact that multiple data tran sfers could not occur at the same time because of the wires. To make the technology useful, researchers had to develop a way for computers to communicate with one another across longer distances and incr ease the usefulness of central servers to store and transmit multiple packets of information simultaneously. To combat the constraints of LANs, and in crease the efficiency of data transfer, researchers developed a less-localized system in which a dedicated computer serves as the host for a group of other computers to access directly instead of thr ough a chain of connections. This setup, known as a Wide Area Network (WAN), pave d the way for the creation of the Internet by allowing a computer to contact th e dedicated server through a longdistance connection such as a telephone or cable line.13 In a WAN, the dedicated server is capable of not only receiving information from the attached individual computer s but also of distributing information to each one of the individual co mputers in the network.14 The difference between a LAN and a WAN can be visualized using the analogy of a wheel, with the hub representing the dedicated server and the spokes leading out to each individual computer in the network. Individual computer s in a LAN would communicate with one another by passing messages around the rim of the wheel w ith no center spoke, leaving only one route 11 Id. 12 Id. at 10. 13 Id. 14 Id.
55 for a message to travel. Messages transmitted in a WAN, however, can take multiple paths to their destination computer. This wheel-and-spoke setup, which allowed for multiple transmission routes through senders and rece ivers, would lay the foundation fo r the research project that largely influenced the development of the Internet. ARPANET It would not take long before the potential of such networking advances would spur the government to action. Realizing the value of netw orking technology to link together computers within the federal government, the Department of Defense developed the Advanced Research Projects Agency (ARPA), which created its own network known as ARPANET.15 Created in 1957, ARPA was a direct response to Sputnik and the perceived threat of Soviet communication technology.16 ARPANET was designed to link together existing LANs and WANs to allow packet-switching through satelli te and radio transmission tech nology instead of the circuitswitching used in telephone communications.17 ARPANET, one network that connected multiple sites, was the beginning of t odays Internet, made up of many interconnected networks.18 Two computers on separate networks could communicat e so long as the networks were connected. Using the wheel analogy, any computer on th e rim of wheel A can communicate with any computer on the rim of wheel B as long as wheel A and wheel B are connected in some fashion, usually through the hub. This advancement a llowed the size of networks to increase exponentially because a new connection that is made between two hubs has the potential to 15 See The Internet Society, supra note 1. 16 See BRIAN J. WINSTON, MEDIA TECHNOLOGY AND SOCIETY A HISTORY: FROM THE TELEGRAPH TO THE INTERNET 325 (1998). 17 See COLLINS, supra note 2, at 10. 18 See JANET ABBATE, INVENTING THE INTERNET 113 (1999).
56 connect multiple computers that previously would have to have been connected to one another individually. Eventually, this technology was developed into a global system of networks that could communicate even if one segment of the inte rconnected route was blocked and unable to communicate.19 ARPANET provided for multiple routes of transmission between a desired starting and ending point, making technology that would be extrem ely useful if portions of a communication network became inoperable.20 Continuing the wheel analogy, if wheel A is connected to wheels B and C, and wheels B and C are connected to wheels D and E, wheel A could contact wheel E even if its connection wi th either wheel B or C was broken. The benefit would allow information to be routed around brok en segments in a transmission route, allowing the information to still reach its destination. ARPANETs structure, which allowed multiple packets of data to transverse the same paths, allowed many speakers to send and receive information simultaneously.21 The technology flourished, with a few university and government networks quickly be ing interconnected. In 1973, ARPANET had expanded to include com puters from outside the United States.22 Around the same time, computer scientists developed the first electronic mailbox program allowing users to easily send electronic mail me ssages, as opposed to large data files, to one another via ARPANET.23 With the creation of e-ma il, users could respond wit hout creating a new file to send and could even edit the message and re-sen d it. Eventually the technology would lead to 19 COLLINS, supra note 2, at 10. 20 Id. 21 See KEVIN HILLSTROM, DEFINING MOMENTS: THE INTERNET REVOLUTION 9 (2005). 22 COLLINS, supra note 2, at 11. 23 See WINSTON, supra note 16, at 330.
57 Telnet, or remote login programs that allowed us ers to be physically pres ent in location A while accessing a server in location B via telephone lines.24 Seeking to improve their communication technology to compete with telephone and other forms of communication, the researchers even developed Emoticons, or a system of characters us ed to show expression in e-mails, such as [:)].25 The government-backed ARPANET was not without competition, however, as universities who had been shut out of ARPANET be gan to develop their own networks. The Internet Goes Public In 1979, a group of university-based computer sc ience departments that were not linked to ARPANET met to discuss alternatives to the government-backed network.26 They eventually convinced the National Science Foundation to f und development of the CSNET, the Computer Science Research Network, which would connect universities with members of the private sector, non-profits and even government agencies.27 Less than five years later, more that 70 sites were connected to CSNET, which was credited with opening the Internet up to any computer science institution government, academic, corporate or non-profit.28 One of the key benefits to CSNET was the ability to use a Telnet connectio n to provide dialup service for schools that could not afford a dedicated connection to the network.29 For the average us er, CSNET provided a more cost-effective approach to networking.30 ARPANET required expensive hardware and 24 The Internet Society, supra note 1. 25 WINSTON, supra note 16, at 330. 26 Id. at 332. 27 Id. 28 Id. See also ABBATE, supra note 18, at 184-186. 29 ABBATE, supra note 18, at 184-185. 30 WINSTON, supra note 16, at 332.
58 software to connect while CSNET required a telephone line.31 The military eventually split off the defense portion of ARPANET,32 and in 1987 CSNET was connected to the remains of ARPANETs research network a nd other regional networks.33 The Internet lacked visual appeal, though, and an application would be necessary to market the text-only technology to the consuming public.34 By the late 1980s, online services such as CompuServe and Prodigy were be ing developed to allow members of the public access to these emerging computer networks while providing a gr aphical interface that appealed to consumers.35 Private-sector technologies such as CompuServe and Prodigy would eventually allow end-users in homes across the United States to connect to the Internet from their personal computers. In addition to the creation of a graphical interface, users needed a way to locate information easily on the Internet. As a result the World Wide Web, wh ich would use hypertext to link files in a non-linear fashion, was born.36 As the Web burgeoned in popularity, a market was created for browsers, such as Netscape Comm unicator and Internet E xplorer, which allowed users to find information based on an address. Search engines, such as Lycos, Altavista and Google, also sprang up to allow users to find information for which they had no Web address.37 New technologies can be both exciting and fr ightening, in part because of the unknowns associated with technological advancement. As was the case with the introduction of other new mass media, including the telegr aph, telephone, radio and broadcas t television, the Internet was 31 Id. 32 ABBATE, supra note 18, at 185. 33 WINSTON, supra note 16, at 332 34 ABBATE, supra note 18, at 213. 35 WINSTON, supra note 16, at 333 36 ABBATE, supra note 18, at 215. 37 Id. at 217.
59 originally the domain of th e military and the government.38 The Internet spread into the public domain in the mid-1990s, initially gaining prom inence at universities, research centers and within government in much the same way as the media that preceded it.39 In the United States, browsers such as Netscape Comm unicator and eventually Inte rnet Explorer brought the World Wide Web, which transforms the informati onal packets sent throug h the Internet into a visual representation,40 onto Americas computers and into it s homes. The Internets popularity grew with amazing speed, from almost 26 million users in December 1995 to more than 1.043 billion in June 2006.41 Benefits of the Internet Today, users worldwide rely on the Internet fo r a variety of tasks. Many users rely on the Internet for transactional activ ities, including online banking (41 percent), donating money to charity (18 percent) a nd gambling (4 percent).42 However, differences in user behavior between the genders tend to increase as the behavior becomes more closely re lated to communicationoriented tasks, such as e-mail, instant messaging and blogging.43 Although men once made up 38 See generally Ben Segal, A Short History of Internet Protocols at CERN (1995), at http://www.netvalley.com/intval1.html (last visited Sept. 4, 2006). 39 COLLINS, supra note 2, at 12-13. 40 Defined by Merriam Webster Dictiona ry Online as a part of the Intern et accessed through a graphical user interface and containing documents often connected by hyperlinks, the World Wide Web (WWW) is a graphical interface that allows users to link back and forth between information located on the Internet through a Web browser that reads computer code and displays a Web page. It is based on four key concepts: hypertext, resource identifiers, markup language and a client server model of computing. Essentially, users type a resource locator (commonly called a URL) into their Web browser, which then connects th eir computers to a server th at contains the information the users desire. This pulls up a series or code that contains markup language, which tells the Web browser how to display the particular information that is designated by the resource locator. See Merriam Webster Dictionary Online, at www.m-w.com/dictionary (last visited July 17, 2007). 41 See World Internet Usage and Population Statistics, at http://www.internetworldstats.com/stats.htm (last visited Sept. 5, 2006). 42 See Deborah Fallows, How Women and Men Use the Internet 11 (2005), at http://www.pewinternet.org/pdfs/ PIP_Women_and_Men_online.pdf (last visited Sept. 5, 2006). 43 Id.
60 the majority of the Internet-c onsuming population, users are now about equally split between the genders.44 Interestingly, according to a 2005 Pew Intern et and American Life research study, many users also rely on the Internet for information-re lated tasks. Male Web surfers are likely to get news, access political information and rate a person/product/service through an online rating system, while women on the Internet are more inclined to use e-mail, check support group Web sites and obtain relig ious information.45 Increasingly, women are more likely to use the Internet for its communicative features, such as email and instant messagi ng, than their male counterparts.46 Men, however, tend to participate in larg er interest groups based on the Internet, including fantasy sports l eagues or discussion groups.47 In each case, users have embraced the Internets ability to connect communicators across vari ous geographic boundaries based on shared interests with both men and women engaging in activities ripe for defamatory communications. Many users view and utilize the Internet as an information resource. More than 90 percent of users surveyed by the Pew Internet and Am erican Life Project in September 2005 reported having used an Internet search engine.48 In January 2005, similar rese arch found that 59 percent of men and 55 percent of women ha d used the Internet to do research for educational purposes.49 44 Id. 45 Id. 46 Id. 47 Id. 48 Id. 49 Id.
61 Nearly one-third of respondent s to the September 2005 survey ha d used the Internet to obtain information about a person.50 In addition to consuming information, Amer icas Internet user s are also creating information. Nearly one-quarter of men in the September 2005 survey reported participating in chatrooms or discussion groups versus one-fifth of the female respondents.51 Women also trail men when it comes to rating people, products an d services using online ranking systems, with more than one-third of the males reporting such activity compared to 28 percent of females.52 One manner in which users can contribute conten t to the Web comes in the form of Weblogs, commonly referred to as blogs, which allow their us ers to post text, audi o and video information on journal-style Web pages with little techni cal knowledge. A recent Pew study found that about 12 million Americans keep a blog.53 Of the bloggers surveyed, more than half were first-time publishers, meaning that had not previous ly publicly displayed their creations.54 More than a quarter of the bloggers surveyed reported that influencing the way pe ople think was a major reason behind their blogging.55 Additionally, 29 percent cited motivating others to action as a major reason to blog.56 While roughly one-fourth of all Internet users have shared their stories, photos, art or other content online, more than thre e-fourths of the bloggers surveyed have created 50 Id. 51 Id. 52 Id. 53 See Amanda Lenhart, Bloggers i (2006), at http://www.pewinternet.org/pdfs/ PIP%20Bloggers%20Report%20July%2019%202006.pdf (last visited Sept. 6, 2006). 54 Id. 55 Id at iii. 56 Id.
62 content specifically to post on their blogs.57 Similarly, the number of American who reported reading blogs has also increased dramatically from 32 million at the end of 2004 to 57 million Americans in July 2006.58 This suggests that Internet creati on and consumption of that content have begun to play a role in the American marketplace of ideas. Consequences of the Internet Unlike other mass mediums, the Internet does not belong to any one person, company or governing agency. Instead, the medium is a series of networks that connect the informational and communicative resources of government entities, pub lic corporations and private people. This creates numerous legal issues with which the co urts continue to str uggle, including anonymous speakers on the Internet, jurisdiction for cases involving online activities and definitional constructs for torts that occur in cyberspace. Many of the legal issues including anonymity and jurisdiction stem from the abil ity of speakers to publish their me ssages anonymously to a large, geographically distant audience. The Supreme Court has not yet es tablished a clear rule to determine when a plaintiff can compel the identity of a potential defendant or in what forum state a plai ntiff can constitutionally sue a defendant. Instead, courts and attorneys have been guided by a series of lower court precedent when sorting through the earliest types of Internet cases to come before the court. After the courts established some preliminary guidelines to address Internet cases that raised issues related to anonymity and jurisdiction, two issues that cr op up in the early stages of litigation, they then became free to deal with th e larger substantive elem ents of the tort of defamation including community, plaintiff status and harm. T hus, once precedent established 57 Id. at iv. 58 Id. at i.
63 whom plaintiffs could sue and in which court, the focus of online defamation litigation began to shift to substantive law issues, such as how to define key aspects of the tort when it is committed online. Anonymity Issues Anonymous speech has a long history in the Unite d States, dating back to the formation of the country when it was not uncommon for pamp hleteers to spread their messages without attribution or with the use of a pseudonym.59 Like the pamphlets of th e colonial revolutionaries, the Internet allows an anonymous speaker to pr esent his message to an audience under a cloak of secrecy. This often presents difficulties for plaintiffs who attempt to sue an anonymous defendant based on a wrong transgressed on the Inte rnet, and the courts in itially struggled to determine when and how they would compel the di sclosure of an anonymous speakers identity. Unlike traditional print and broadcast defamation cases, where the source of message is likely easily identifiable, the Intern et provides more opportunity for anonymous and pseudonymous speech, which may promote communicati on seemingly without consequence.60 Thus, a plaintiff defamed by an anonymous speaker online has the additional burden of uncovering the speakers identity in order to proceed with a defamation action. A right to speak anonymously? Determining whether to reveal an anonymous speakers identity is not a simple legal question. In part, the difficulty of the courts to decide such que stions can be traced to the 59 For example, Roger Sherman wrote under the name s A Countryman and Citi zen of New Hampshire. See 16 THE DOCUMENTARY RATIFICATION OF THE CONSTITUTION 290 (John P. Kaminski & Gaspare J. Saladino eds., 1986). 60 The fact that many Internet speakers employ online pseudonyms tends to heighten this sense that anything goes, and some commentators have likened cyberspace to a frontier society free from the conventions and constraints that limit disc ourse in the real world. See Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE L.J. 855, 863 (2000).
64 convoluted jurisprudence in the area of anonymous speech. No single court case has definitively established the right to speak anonymously, with the Supreme Court deciding several cases on another constitutional ground.61 In McIntyre v. Ohio Elections Commission,62 Justice John Paul Stevens, writing for the Court tiptoed around the issue of the right to speak anonymously, noting [a]ccordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the c ontent of a publication, is an aspect of the freedom of speech protected by the First Amendment.63 More recently, in Watchtower Bible & Tract Society of New York v. Village of Stratton ,64 Justice Stevens stopped short of establishing a right to anonymous speech. Stevens noted the Court had taken the case to answ er the question of whether an ordinance requiring canvassers to obtain a permit prior to engaging in door-to-door advocacy and mandating the display of that permit upon demand violates the First Amen dment protection accorded to anonymous pamphleteering or discourse.65 The Courts opinion focuses not on the anonymous nature of the speech but instead on the sweeping language of th e regulation, citing the ordinances lack of tailoring for its downfall.66 Given the Supreme Courts hesitation to firmly establish a right to 61 See, e.g., N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958) (holding that an order requiring the organization to reveal the names and other information about its members infringed on the freedom of association). 62 514 U.S. 334 (1995) (striking down an Ohio law prohibiting the distribution of any anonymous campaign literature as a violation of the First Amendment). 63 McIntyre, 514 U.S. at 342. 64 536 U.S. 150 (2002) (striking down an ordinance requiring canvassers to obtain a permit prior to engaging in door-to-door advocacy and mandating the di splay of that permit upon demand). 65 Id. at 160. 66 Id. at 165-166. The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive-not only to the values protected by the First Ame ndment, but to the very notion of a free society-that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor's office is a ministerial task that is performed promptly and at no cost to the ap plicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our na tional heritage and constitutional tradition. Id.
65 speak anonymously, it is not surprising the lower courts have had a difficult time establishing a uniform approach for when to compel disc losure of an anonymous speakers identity. Anonymous speech online Anonymous speech on the Internet has likely been around as long as the Internet. However, the implication of anonymous speech by John Doe defendants is a relatively recent addition to online defamation law.67 Initially, most online defamation cases in the early 1990s were litigated between a plaintiff and an Intern et Service Provider, the company responsible for providing access to the Internet.68 However, Congress passed th e Communications Decency Act as a part of the Telecommunications Act of 1996, immunizing ISPs from legal liability for defamatory content and changing the dynamics of online defamation cases. With no corporate defendant to sue, plaintiffs quickly made John Doe the defendant of choice in online defamation actions.69 Before the Communications Decency Act passe d, the first online defamation case between a plaintiff and an Internet Service Provider involved an online forum where users could post comments and read content about specific topics. In Cubby, Inc. v. CompuServe, Inc.,70 the plaintiffs, doing business as Cubby Inc., su ed CompuServe for defamation, business disparagement and unfair competition based on content published in one of the 150 special interest forums that CompuServe maintained for its subscribers.71 The Journalism Forum, 67 Prior to Congress enactment of Section 230 of the Communications Decency Act, it made more sense from a litigational perspective to sue the Internet Service Providers, who are likely to have much deeper pockets. For a discussion of this, see Lidsky, supra note 60, at 868-873. 68 See infra 69 See infra 70 Cubby v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991) 71 Id. at 137.
66 operated by Cameron Communications Inc. for CompuServe, contained a daily newsletter known as Rumorville USA.72 CompuServe retained no editori al control over Journalism Forum or Rumorville USA, instead contracting with Ca meron to manage, review, create, delete, edit and otherwise control the contents of the J ournalism Forum in accordance with editorial and technical standards and conventions of style as established by CompuServe.73 Rumorville was provided to the Journalism Foru m based on a sub-contract between Cameron and Dan Fitzpatrick Associates, and CompuServe entered into no financia l, contractual or editor ial relations with Dan Fitzpatrick Associates. In fact, CompuServe ha d no editorial control over Rumorville before it was uploaded onto CompuServes computers.74 Cubby Inc., which intended to compete with the Rumorville newsletter, developed a software program called Skuttlebut to collect and disseminate news and chatter about the journalism industry.75 In its lawsuit, Cubby alleged that Rumorville defamed Cubby in thr ee ways: by saying Skuttlebuts staff used information from Rumorville obtained through some back door, by saying a Skuttlebut employee was bounced from his previous job; and by calling Skuttlebut a new start-up scam.76 Although the U.S. District Court for the Southe rn District of New York never reached the case on its merits, instead granting CompuSer ves motion for summary judgment based on procedural grounds,77 several of the issues addressed by the court set the stage for further Internet defamation decisions. First, the court fo und CompuServe to be a mere distributor of 72 Id. 73 Id. 74 Id. 75 Id at 138. 76 Id. 77 Id. at 144.
67 information, similar to a bookstore, in this case based on its hands-off ed itorial approach with Rumorville.78 In doing so, the court concluded it woul d not be appropriate to hold CompuServe liable for any defamatory statements unless it co uld be proven that CompuServe, like a publisher, should have known of the content. Thus th e court immunized CompuServe by labeling it a distributor as opposed to a publisher, likening them more to booksellers than to newspaper editors and publishers:79 Technology is rapidly transforming the informa tion industry. A computerized database is the functional equivalent of a more trad itional news vendor, and the inconsistent application of a lower standard of liability to an electroni c news distributor such as CompuServe than that which is applied to a public library, b ook store, or newsstand would impose an undue burden on the free flow of information. Given the relevant First Amendment considerations, the appropriate standard of liability to be applied to CompuServe is whether it knew or had reas on to know of the allegedly defamatory Rumorville statements.80 Finding CompuServe to be a distributor, the co urt dismissed the claim of vicarious liability through which the plaintiffs sought to have CompuServe held responsible for any torts committed by Cameron Communications.81 Because Dan Fitzgerald Associates was an independent contractor of Came ron Communications, the plaintiffs would have needed to show a relationship in which CompuServe directed Came ron or Dan Fitzgerald Associates to act in a way that injured Cubby and Skuttlebut.82 The court found no indication of this type of arrangement; instead, it noted that CompuServe de legated all of the publisher-type responsibility 78 Id. at 139. 79 Id. The requirement that a distributor must have knowledge of the contents of a publication before liability can be imposed for distributing that publication is deeply rooted in the First Amendment, made applicable to the states through the Fourteenth Amendment. Id. 80 Id. at 140-141. 81 Id. at 141. 82 Id. at 143.
68 to Cameron. Thus, the court refused to allow the vicarious liability claim.83 The decision in Cubby would influence online defamation cases for onl y a short time before another court issued a conflicting ruling. Just four years later in 1995, a state tr ial court in New York determined in Stratton Oakmont v. Prodigy84 that Internet Service Provider Pr odigy was a publisher of content on its Money Talk bulletin board for the purpose of its defamation lawsuit.85 This ruling contradicted the CompuServe decision, in which the court rule d CompuServe was a distributor, and opened the door for Internet companies to be held liable.86 The Prodigy court found that Prodigys bulletin board leaders, who were char ged with scrutinizing content on the bulletin boards, could be held to have acted as an agen t for Prodigy for the purpose of vicarious liability, again contradicting the CompuServe decision.87 The court made its decision based, in large pa rt, on Prodigys policy statements. One of the ways in which the company tried to differe ntiate itself from the competition, including CompuServe, was to promote a values-oriented, family-friendly environment. In doing so, Prodigy likened itself to a newspaper, which lent credence to the finding that it acted like a publisher.88 The second reason the court found Prodigy to be more like a publisher than a 83 Id DFA is therefore largely independent of CompuServe in its publication of Rumorville, and the tenuous relationship between DFA and CompuServe is, at most, that of an independent contractor of an independent contractor. Id. 84 See Stratton Oakmont v. Prodigy Services Co., unpublished at 1995 WL 323710 (N.Y. Sup. 1995). 85 Id. 86 Cf. Cubby 776 F. Supp. at 141. 87 See Stratton Oakmont unpublished at 1995 WL 323710. 88 We make no apology for pursuing a value system that reflects the culture of the millions of American families we aspire to serve. Certainly no responsible newspaper does less when it chooses the type of advertising it publishes, the letters it prints, the degree of nudity and unsupporte d gossip its editors tolerate. Exhibit J, cited in Stratton Oakmont.
69 distributor was because of its software-screeni ng system and guidelines that bulletin board leaders were instructed to follow when editing the postings.89 By telling bulletin board leaders to screen for offensiveness and bad taste, Prodigy stepped into the same shoes as a newspaper editor.90 In finding that bulletin board leaders acted as agents for Prodigy, the court likened them to an editorial board established at a newspaper: In contrast [to CompuServe], Prodigy has virt ually created an editorial staff of Board Leaders who have the ability to continually m onitor incoming transmissions and in fact do spend time censoring notes. Indeed, it could be said that Prodigy's current system of automatic scanning, Guidelines and Board Lead ers may have a chilling effect on freedom of communication in Cyberspace, and it appears that this chilling effect is exactly what Prodigy wants, but for the legal liability that attaches to such censorship.91 In making such a decision, the court took care to note that Prodigy was an exception to the Cubby rule.92 Similarly, the court emphasized that it believed computer bulle tin boards should be regulated like bookstores and libraries.93 However, the court also noted that when companies take affirmative actions, as Prodigy had in this ca se, they should not be allowed to rely on the precedent established in Cubby .94 The Communications Decency Act In the midst of developing jurisprudence in the Internet aren a, Congress undertook a massive legislative re-working of the 1934 Co mmunications Act, which would become the Telecommunications Act of 1996.95 The Telecommunications Act, which contained a section 89 Id. 90 Id. 91 Id. 92 Id. 93 Id. 94 Id. 95 Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).
70 known as the Communications Decency Act, was the first major overhaul of federal communication law in more than six decades. In it, Congress addressed a variety of topics, including the deregulation of the telecommunicati ons industries to promote competition and the creation and funding of universal service. One year later, in 1997, the U.S. Supreme Court would hear its first ch allenge to the CDA. In Reno v. ACLU ,96 the American Civil Liberties Union challenged a section of the law that prohibited the transmission of obscene or indecent expression to minors using the Internet. In holding the provision uncons titutional, Justice John Paul Stevens wrote: Those factors are not present in cyberspace. Ne ither before nor after the enactment of the CDA have the vast democratic forums of the Internet been subject to the type of government supervision and regulation that ha s attended the broadcas t industry. Moreover, the Internet is not as inv asive as radio or television.97 In addition to establishing that the Court shoul d not automatically regulat e the Internet in the same manner as the media that had preceded, the Court also made mention of the unique characteristics of the Internet, which served as the Courts rationale for the Internets individual treatment as a unique medium of communication.98 The Internet, Justice Stevens wrote, bring the power of mass communicati on to the individual: Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it c ould from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the sa me individual can become a pamphleteer.99 96 521 U.S. 844 (1997) (holding sections of the CDA prohibiting transmission of obscene or indecent communications using a telecommunications device to minors was an unconstitutional content-based restrictions on speech that was overbroad). 97 Id. at 868-69. 98 Id. at 870. 99 Id.
71 At the end of the Courts opinion, Justice Steven s ruled that the Court, without more specific showings about the exposure of children to harmful material, could not hold the CDA provision to be constitutional b ecause it unduly burdened First Amendment rights: The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that govern mental regulation of the cont ent of speech is more likely to interfere with the free ex change of ideas than to encourage it. The interest in encouraging freedom of expression in a democr atic society outweighs any theoretical but unproven benefit of censorship.100 The Reno case was not the only case to challenge the constitutionality of the CDAs various provisions. And soon afte r, another of the CDAs mandat es, the one most pertinent to defamatory speech on the Internet, would be scrutinized by the federal courts.101 Within Title V of the CDA, Section 230, or the Good Samar itan Act provision, immunizes service providers from liability for torts committed by users over the service providers networks. Essentially, it prevents service providers from being punished for the bad acts of their users. This provision, which addresses the heart of the Prodigy and Cubby cases, was quickly the target of litigation. The CDA and ISP Immunity Shortly after Congress passed the law immunizi ng ISPs, litigation in the federal courts commenced. The case of Zeran v. America Online required the Fourth Circuit to determine whether the Communications Decency Act barred a negligence action by the plaintiff against America Online (hereinafter AOL) for failure to promptly remove defamatory statements by an unidentified third party poster.102 Additionally, Zeran claimed AOL refused to issue retractions 100 Id. at 885. 101 See Zeran v. America Online 129 F.3d 327 (4th Cir. 1997), cert. denied 524 U.S. 937 (1998). 102 Id
72 for the statements and failed to adequately screen for future defamatory statements.103 The Fourth Circuit, classifying AOL as an inter active computer service that allows Internet connectivity in addition to providing content, fo und that Section 230 of the CDA shielded AOL from liability for the defamatory postings.104 The postings at issue included advertisemen ts for Naughty Oklahoma T-shirts, which displayed crude messages about the 1995 Oklahoma City federal building bombing.105 The advertisement instructed those interested to call Zeran and listed his home/business telephone number, at which he received an array of hateful messages and even death threats.106 Despite Zerans calls to AOL and its repeated assuranc es the postings would be removed, an anonymous poster continued to re-publish the messages.107 As an affirmative defense to Zerans suit, AOL argued that Section 230 excused it from liability for the third-party poste rs conduct. In relevant part, S ection 230 states: 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.108 The court agreed with AOL, holding that Congress, by enacting this section of the CDA, preven ted the courts from being able to hold interactive computer services liable: Specifically, 230 precludes courts from entert aining claims that would place a computer service provider in a publishe r's role. Thus, lawsuits seek ing to hold a service provider 103 Id. at 328. 104 Id. at 329-330. Much of the information transmitted over its network originates with the company's millions of subscribers. They may transmit information privately vi a electronic mail, or they may communicate publicly by posting messages on AOL bulletin boards, where the messages may be read by any AOL subscriber. Id. at 329. 105 Id. at 329. 106 Id. 107 Id. 108 47 U.S.C. 230 (c)(1).
73 liable for its exercise of a publisher's tradi tional editorial functi ons, such as deciding whether to publish, withdraw, postp one or alter content, are barred.109 In making such a determination, Congress, th e court said, was obvious ly trying to protect freedom of expression by preventing government intrusion into speech activities on the Internet.110 To rectify the harms created by the posti ngs, the court noted that Congress had not barred action against the original thir d-party posters of the information.111 Section 230, the court noted, was Congress direct legislative response to the Stratton Oakmont decision, which ruled Prodigy could be subject to liab ility for defamatory content.112 The Zeran ruling was not without its detr actors. The U.S. District Court for the District of Columbia considered Blumenthal v. Drudge113 shortly after Zeran was decided. The case pitted well-known Clinton adviser Sidney Blumenthal against Internet publis her Matt Drudge after Drudge reported Blumenthal abused his wife.114 The court followed the Z eran holding, finding no liability on the part of The Drudge Report. But it also noted its di sagreement in dicta: AOL has certain editorial ri ghts with respect to the c ontent provided by Drudge and disseminated by AOL, including the right to require changes in content and to remove it; and it has affirmatively promoted Drudge as a new source of unverified instant gossip on AOL. Yet it takes no responsibility for any damage he may cause. Because it has the right to exercise editorial c ontrol over those with whom it contracts and whose words it disseminates, it would seem only fair to hold AOL to the liability standards applied to a publisher or, at least to the liability standa rds applied to a distri butor. But Congress has made a different policy choice by providing i mmunity even where the interactive service provider has an active, even aggressive ro le in making availabl e content prepared by others.115 109 Zeran 129 F.3d at 331. 110 Id. 111 Id. 112 Id., at 332. 113 992 F. Supp. 44 (Dist. D.C. 1998). 114 Id. at 51-52. 115 Id.
74 The Blumenthal court was not the only one to express discontent with the Zeran ruling. More recently, a California appella te court declined to follow Zeran, only to be overruled on appeal. In Grace v. eBay, the California court held that Se ction 230 provided no immunity for distributors.116 The court noted that it did not believ e the use of the term publisher was intended to cover any time a defamatory stat ement was published, thereby abolishing common law liability for distributors:117 The broad immunity provided under Zeran however, would elimin ate potential liability for providers and users even if they made no effort to control objec tionable content, and therefore would neither promote the developm ent of technologies to accomplish that task nor remove disincentives to that development as Congress intended.118 In the wake of the CDA, Zeran and Blumenthal plaintiffs who want ed to sue for online defamation were left with only one place to tu rn for compensation for the injury to their reputation: the person posting the comment. As a result, a number of lawsuits progressed through the both the federal trial courts and state court systems in the late 1990s and early 2000s, often where plaintiffs had named a John Doe defenda nt accused of anonymously posting defamatory comments.119 As these cases progressed, the courts ha d to balance the defendants anonymous speech rights with the plaintiffs right to protec t their reputations. Thus, the first issue to be addressed was when disclosure of an anonymous speakers id entity is allowed. The U.S. Supreme Court has not addressed the nuances of revealing a speakers identity to those pursuing a lawsuit based on wrongs carri ed out over the Internet. Because of this, 116 16 Cal. Rptr. 3d 192, 200 (Cal. App. 2004). 117 Id. at 201. There is no indication, however, that Congre ss intended to preclude liability where the provider or user knew or had reason to know that the matter was defamatory, that is, common law distributor liability. Id. 118 Id. 119 See, e.g., Melvin v. Doe, 2000 WL 33311704, 29 Media L. Re p. 1065 (Pa.Com.Pl. 2000); SPX Corp. v. Doe, 253 F. Supp.2d 974 (N.D. Ohio 2003).
75 several cases and approaches have bubbled up in state and federal courts across the country.120 Although these lower courts may take different a pproaches, their decisions often have one key similarity: the need to balance the First Amendment right to speak anonymously with the need to redress wrongs perpetrated on th e Internet. Thus, the cases ofte n find the court concerned with both the potential chilling effect on anonymous sp eech as well as the potential reputational injury flowing from such speech. Columbia v. Seescandy.com121 In 1999, the Seescandy.com case was one of the first requiring a federal court to determine whether to allow the disclosure of an anonymous defendants ident ity in order to allow a lawsuit to commence regarding wrongs perpetrated on th e Internet. In the case, Columbia Insurance Company sued a Web site (Seescandy.com) be half of well-known confectioner Sees Candy Shops.122 Columbia sought to discover the identity of the defendant Web site producers, whom Columbia alleged licensed domain names including seescandy.com and seescandys.com in violation of the trademark held by Sees Candy Shops.123 In the opinion, Judge D. Lowell Jensen discussed the growing number of cases in which torts, includi ng defamation, were being carried out anonymously over the Internet.124 Additionally, the opinion created a framework to determine whether to allow the disclosure of an anonymous defendants identity. 120 See infra 121 185 F.R.D. 573 (N.D. Cal. 1999). 122 Seescandy.com, 185 F.R.D., at 575. 123 Id. at 575. 124 Id. at 578. With the rise of the Internet has come the ability to commit certain tortuous acts, such as defamation, copyright infringement, and trademark infringement, entirely on-line. The tortfeasor can act pseudonymously or anonymously and may give fictitious or incomplete identifying information. Parties who have been injured by these acts are likely to find themselves chasing the tortfeasor from Internet Service Provider (ISP) to ISP, with little or no hope of actually discovering the identity of the tortfeasor. Id.
76 Before detailing the disclo sure test, Judge Jensen discu ssed the value of anonymous and pseudonymous speech on the Internet, which he sa id should be allowed so long as the speaker does not violate the law.125 Allowing such speech encourages lively debate and free communication while also providing anonymous Inte rnet users with an opportunity to obtain information that they might otherwise not seek out due to embarrassment.126 If the law were created in a way that left anonymous speakers fear ful of being haled into court and having their identities revealed, then desirable speech would likely be constrained.127 Responding to that concern, Judge Jensens framework applied some limitations to plaintiffs who sought to uncover the identity of a defendant. Fi rst, a plaintiff must provide enough information to the court so that a judg e may determine whether the court will have jurisdiction over the defendant whose identity is sought.128 This step is designed to ensure that plaintiffs filing suit in federal c ourt would meet the requirements necessary to actually maintain a lawsuit in the federal courts such as the c onstitutional requirements of answering a federal question or having diversity jurisdiction while meeting th e minimum dollar amount in controversy.129 Second, a plaintiff must inform the court of the steps already taken to obtain the defendants identity.130 This step is designed to ensure that plaintiffs have come to the court in good faith as a last resort to discover a defendants identity. Third, the plai ntiff must demonstrate 125 Id 126 Id People who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous la wsuit and thereby gain the power of the court's order to discover their identity. Id. 127 Id 128 Id 129 Id 130 Id. at 579.
77 the case would not be thrown out upon a motion to dismiss the lawsuit.131 This step is designed to prevent a plaintiff from f iling a barebones pleading and requir es instead that a plaintiff establish that some act giving rise to civil liability has taken place.132 Finally, Judge Jensens framework required a plaintiff to file a request for discovery with the court that outlines the manner in which the plaintiff might be able to obtain the ident ity of the defendant.133 This step is designed to prevent a plaintiff fr om engaging in a fishing expediti on that is unlikely to discover the identity of a defendant while harassing those potentially in possession of information about a defendants identity. Overall, J udge Jensens framework attempted to create an environment in which a worthy plaintiff can legally discover th e identity of an anonymous defendant while ensuring that plaintiffs are not allo wed to unduly harass anonymous speakers. In re subpoena duces tecum to America Online134 One year after Seescandy.com a Virginia trial court was asked to decide whether AOL could be compelled to disclose the identity of se veral of its subscribers. The Virginia court, working together with an Indiana trial court, had issued a subpoena duces tecum requiring AOL to produce documents leading to the identification of several subscribers being sued in Indiana by a publicly traded company.135 The company filed suit in Indi ana for allegedly defamatory postings made by the subscribers in an AOL chatroom.136 AOL challenged the subpoena, citing 131 Id The requirement that the government show probable cause is, in part, a protection against the misuse of ex parte procedures to invade the privacy of one who has done no wrong. A similar requirement is necessary here to prevent abuse of this extraordinary application of the discov ery process and to ensure that plaintiff has standing to pursue an action against defendant. Id. at 579-80. 132 Id. at 580. 133 Id 134 52 Va. Cir. 26 (Va. Cir. Ct. 2000), 2000 WL 1210372. 135 In re subpoena, 52 Va. Cir., at 1. 136 Id
78 the First Amendment and its subscribers right to speak anonymously, and the Virginia court answered by laying out a test similar to that in Seescandy.com to determine whether to require disclosure of the subscribers identities. The Virginia court was aware of the Seescandy.com decision and took some of Judge Jensens reasoning to heart.137 Not surprisingly then, the Virgin ia opinion focuses on some of the same issues highlighted by Judge Jensens fr amework. The first requirement mentioned by the Virginia court is the notion that there must be a showing that a true cause of action, not merely one that is perceived, exists.138 This draws a parallel to the third prong of the Seescandy.com framework. The other prong of the Virginia test is designed to ensure plaintiffs truly need the information to pursue a tort claim, which protects anonymous speakers from having their identities needlessly revealed.139 Much of this language can be tr aced to the fourth prong of the Seescandy.com framework. Although the two courts outline their respec tive frameworks somewhat differently Seescandy.com in a five-p art approach and the Virginia court in a twoprong framework it is quite clear that some of th e same concerns were addressed in each case. Dendrite International v. John Doe140 One year later, the appellate division of the New Jersey Superior C ourt would be asked to address the same question the Virginia cour t attempted to answer. This time, Dendrite 137 In fact, the Virginia opinion mentions Seescandy.com in a footnote. See id. at 5, n. 11. 138 Id. at 8. Nonetheless, before a court abridges th e First Amendment right of a person to communicate anonymously on the Internet, a showing, sufficient to enable that court to determine that a true, rather than perceived, cause of action may exist, must be made. Id. 139 Id. A court should only order a non-party, Internet service provider to provide information concerning the identity of a subscriber (1) when the court is satisfied by the pleadings or evidence supplied to that court (2) that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed and (3) the subpoenaed identity information is centrally needed to advance that claim. Id. 140 Dendrite International, Inc. v. John Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
79 International was the corporation and Yahoo wa s the Internet Service Provider. While its defamation claim was pending, Dendrite asked the court to compel Yahoo to provide the names of several John Doe defendants.141 In doing so, it raised the question of when it was proper to require disclosure of the anonymous defendants names. The Dendrite court established a four-part test that pl aintiffs must meet in order for a court to mandate disclosure of an anonymous defendants name. First, the plaintiff must seek to notify the defendant of the cause of ac tion and the trial court must allo w the defendant time to respond in opposition to any pleadings of which they receive notice. 142 In detailing this step, the court indicated the plaintiff should pos t notification on the offending bulle tin board or site to provide proper notice.143 The second step required that the plainti ff plead the exact statements that are at the heart of the litigation.144 The third step required that the plaintiffs complaint set forth a prima facie case that could withstand a motion to dismiss meaning the plaintiff must provide some evidence of each element of the tort.145 Finally, the court must then balance the strength of the prima facie case with the anonymous defe ndants First Amendment rights before mandating disclosure of the defendants identity.146 The court, concerned th at revealing a posters anonymity without cause would chill speech, wa nted to protect anonymous speakers by putting some onus on plaintiffs. 141 Id. at 760. 142 Id 143 Id 144 Id 145 Id The plaintiff must prod uce sufficient evidence suppor ting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant. Id. 146 Id at 760-61.
80 The Dendrite court incorporated many of the ideas contained in the earlier decisions. However, it also represents the most developed ba lancing test for several reasons. First, the court took steps to require a specific attempt by the pl aintiff to notify the defendant and provides explicit guidance on how to do s o. Second, the court re quired the prima fa cie showing by the plaintiff, a step that was implied but not expl icitly mandated by the Virginia court or in Seescandy.com Finally, the Dendrite court made specific mention in the analysis of balancing the First Amendment rights with the streng th of the plaintiffs case. Thus, the Dendrite court seemed to build upon the earlier opini ons to craft a more refined one. Cahill v. Doe147 In a 2005 case, the Delaware Supreme Cour t adapted the test established by the Dendrite court, using some portions while rejecting others. Cahill v. Doe involved a local elected official who was suing an anonymous John Doe defendant for a defamatory posting on a local news blog.148 At the same time the court adopted the Dendrite summary judgment standard, it rejected the earlier tests established in Seescandy.com and AOL. Neither a good faith nor a motion to dismiss standard provides adequate protection to anonymous speakers, ac cording to the court.149 A summary judgment standard, li ke the one established in Dendrite was the only standard that the court believed would adequately protect First Amendment rights of anonymous speakers150: We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously. The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all.151 147 881 A.2d 451 (Del. 2005). 148 Cahill, 881 A.2d, at 454. 149 Id. at 457. 150 Id. at 460. 151 Id. at 461.
81 The Cahill court did not whol esale adopt the Dendrite standard. Instead, the Cahill court modified the standard by adopting the first a nd third prongs of the te st, while abandoning the second and fourth prongs.152 It was not that the court did not see value in all four parts of the test; the Cahill court believed that steps two and four we re adequately represented in the other prongs of the test. For example, step two of the Dendrite standard requires a plaintiff to provide the exact defamatory statements, which the Cahill court asserted was a part of producing a pleading that would withstand summary judgment.153 Similarly, a fourth step enunciating the balance of the First Amendment rights wa s also unnecessary in the view of the Cahill court, which asserted that the summar y judgment standard was prot ective enough to serve as an adequate balance of rights.154 Even after four cases, the sta ndard for allowing disclosure of an anonymous defendants identity continues to be in a state of flux. Alt hough some of the elements of the early cases are similar, the courts continue to point out flaws in the standa rds and make modifications and refinements to the tests. For example, in McMann v. Doe,155 the U.S. District Court for the District of Massachusetts seemed to follow the Cahill standard even though it pointed out the flaws of the summary judgment approach taken in Cahill including the difficulty of providing specific facts instead of allegations to assert a tort claim. The McMann court noted that no plaintiff would be able to show actual malice on the part of an anonymous defendant, ultimately 152 Id Accordingly, we adopt a modified Dendrite standard consisting only of Dendrite requirements one and three: the plaintiff must make reasonable efforts to notify the de fendant and must satisfy the summary judgment standard. Id. 153 Id. To satisfy the summary judgment stan dard a plaintiff will necessarily quot e the defamatory statements in his complaint. Id. 154 Id. The fourth requirement adds no protection above and beyond that of the summary judgment test and needlessly complicates the analysis. Id. 155 See McMann v. Doe, 460 F. Supp. 2d 259 (D. Mass. 2006).
82 a pitfall to his case under a summary judgment approach.156 Similarly, requiring the detailed factual allegations needed to withstand summary judgmen t without allowing adequate time for discovery also creates hardships for plaintiffs, w ho would have to meet the standard of clear and convincing evidence to prevail.157 Despite pointing out the flaws in the Cahill approach, the McMann court noted that some screening process was necessary to protect anonymous speakers onl ine and that the case at hand did not meet the summary judgment standard. In f act, the court noted that the plaintiffs case was so weak that he had failed to even state a claim for defamation.158 Given that the issues surrounding anonymous online speaker s are being addressed simulta neously in both state and lower federal courts, it will likely take a federa l appeals court ruling to provide some overarching organization to the standard required for disc losure of an anonymous defendants identity. Jurisdictional Issues Once a plaintiff has determined whom it is he wants to sue, he must also determine the proper court in which to file suit against the defendant. Although traditional rules of civil procedure chart a relatively certain venue for the filing of most civil actio ns, Internet defamation claims are particularly complex.159 It is often the case in Inte rnet defamation that the defamed plaintiff seeks to sue in his home jurisdiction, which may create a hardship for defendants who 156 Id. at 267. This presents a problem, as the requirement of proving actual malice is the mechanism by which the Supreme Court has balanced First Amendment protections in defamation cases. Under this approach, a public figure could unmask anonymous critics without meeting an essen tial step in the prima faci e case, a showing of actual malice. At the same time, requiring a preliminary showing of fault would mean no subpoenas would ever issue, and character assassins would be free to trumpet hu rtful lies from all corners of the internet. Id. 157 Id. Normally, bare assertions in an affidavit are not adequate to defeat summary judgment, as the plaintiff must adduce specific facts. At the same time, prior to discovery a court cannot reas onably expect a plaintiff to produce evidence that could rise to the required level of clear and convincing evidence. Id. 158 Id. at 268. 159 See Patrick J. Borchers, Internet Libel: The Consequences of a Non-Rule Approach to Personal Jurisdiction, 98 NW. U. L. REV. 473 (2004).
83 live elsewhere.160 In other aspects of law, this quand ary is settled through the use of the minimum contacts principle, enunciated by the U.S. Suprem e Court in 1945, and designed to ensure fairness to defendants who are haled into court.161 In its current form, the test requires that when a defendant is not present in a jurisdiction, he must have minimum contacts with the forum state, such as receiving the benefit of doing busin ess in the state, having utilized the protections of the forum states laws or establishing another substant ial connection to the state.162 A unilateral act by the plaintiff alone cannot be us ed to establish sufficient minimum contacts for jurisdiction over a defendant.163 Although the case law in the area of personal jurisdiction is fa irly well developed, the cases do not involve a new technology such as the Intern et. Thus, much of the personal jurisdiction law used by courts in Internet defamation cases is a modification of the law established in traditional print and broadcast defamation jurisdiction cas es. The U.S. Supreme Court has decided two companion cases, which serve as guideposts to determine jurisdiction in Internet defamation cases.164 In 1987, the Supreme Court addressed two libel cases in which the parties resided in different states. In both cases, the U.S. Supr eme Court upheld jurisdic tion in the forum state chosen by the plaintiffs. The decision was not based on the minimum co ntacts test, but the 160 Cahill, 881 A.2d, at 473. Those who find themselves defending libel actions brought in other states often move to dismiss on the ground that the court lacks personal jurisdiction. Id. 161 See Intl Shoe Co. v. Washington, 326 U.S. 310 (1945) (holding that due process of law requires that a person possess certain minimum contacts with the forum in which he is being sued so that his being sued does not offend the traditional notions of fairness and justice). 162 See Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 108 (1987). 163 Id. 164 See Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) (holding that a publisher's regular circulation of magazines in the forum state was sufficient to support jurisdiction in an action based on the contents of that magazine); Calder v. Jones, 465 U.S. 784 (1984) (holding that an individuals intentional conduct in one state, when calculated to cause harm in another, can be the basis for jurisdiction in the state in which the harm occurred).
84 court still examined the defendants conduct to decide if jurisdicti on was constitutional.165 In Keeton v. Hustler, the Court held that the magazines inte ntional circulation of magazines within the boundaries of New Hampshire created a suffi cient relationship among the defendant, the forum, and the litigation,166 as required for due process.167 There, the plaintiff sued Hustler magazine for defamation in New Hampshire despite her status as a New York resident because of New Hampshires lengthy statute of lim itations in defamation cases: six years.168 However, the Court found the necessary connection to exercise personal jurisdiction over Hustler in part, because the Court deemed it fair to require Hustler to defend a lawsuit aimed to compensate the plaintiff for harm to reputational injury in multiple states.169 The Court noted that Hustler chose to enter the New Hampshire market, can be char ged with knowledge of its laws and no doubt would have claimed the benefit of them if it had a complaint against a subscriber, distributor or other commercial partner.170 Keeton s companion case, Calder v. Jones, addressed a similar quest ion as it pertained to an individual defendant instead of a corporation such as Hustler .171 In Calder, a professional entertainer from California brough t suit in California ag ainst two writers from Florida, claiming that she had been defamed based on an ar ticle they had written that impugned her professionalism.172 The defendant writers were working for the Florida-based National 165 Keeton 465 U.S. at 780-781; Calder 465 U.S. at 788-789. 166 Keeton 465 U.S. at 774 ( quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). 167 Keeton 465 U.S. at 774. 168 Id. at 772-73. 169 Id. at 777-78. 170 Id. at 779. 171 Calder 465 U.S. at 783. 172 Id. at 784.
85 Enquirer .173 The Supreme Court ruled in favor of th e plaintiff, holding that jurisdiction in California was proper based on based on the harm that resulted in Californi a as a result of the defendants conduct in Florida.174 In sum, California was the focal point both of the story and of the harm suffered.175 The Court mentioned that the stor y was based upon California sources and that the injury to reputation occurred in California.176 The writers claimed they should not be held responsible for the circ ulation of the story within California because they were not the dist ributors and had not targeted the article toward California.177 However, the Court found their actions we re targeted toward California based on their level of responsibility fo r an article they knew would ne gatively affect the plaintiff.178 Thus, the Court concluded the defendant s could reasonably anticipate being haled into court there179 based on intentional conduct in one state calculated to inju re someone in another state.180 Keeton and Calder provide insightful guidance for jurisdictional analysis in defamation cases involving parties who reside in different states. However, they do not take into consideration the geographical inte rconnectivity and worldwide reach of the Internet in an age of new technology. Because there are no Supreme C ourt or federal appellate cases directly addressing jurisdiction in Internet defamation cases to date, scholars, attorneys and jurists must 173 Id 174 Id. at 788-89. 175 Id. at 789. 176 Id. at 788. 177 Id. at 789. 178 Id. at 789-90. 179Id. ( quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 286, 297 (1980). 180 Calder 465 U.S. at 791.
86 rely on lower federal court and stat e court decisions to piece together a jurisdictional analysis in such a situation. One of the most frequently cited Internet ju risdiction cases from the federal courts dates back to 1997. In Zippo Manufacturing v. Zippo Dot Com the maker of a well-known brand of lighters sued a computer news service that had registered several domain names that contained the word zippo despite the lighter companys trademark.181 The news service brought a motion before the court seeking to have the case dismissed or transfe rred, claiming Pennsylvania courts did not have jurisdiction over it b ecause it is a Calif ornia corporation.182 The U.S. District Court for the Western District of Pe nnsylvania established a three-pa rt test to determine whether Internet contacts were substant ial enough to establish personal jurisdiction over a defendant.183 The test looks at (1) whether the defendant had minimum contacts with the jurisdiction, (2) whether the lawsuit at hand arose as a result of the defendants mini mum contact with the jurisdiction and (3) whether the exercise of personal jurisdic tion over the defendant could be considered reasonable.184 The first prong of the Zippo test pairs nicely with the traditional minimum contacts test established by the Supreme Court in the International Shoe line of cases. Simply put, Zippo asserted that the defendant must have undertak en these contacts in a volitional manner for jurisdiction to be proper.185 Quoting several cases, the Zippo court noted that the contacts must 181 952 F. Supp. 1119 (W.D. Pa. 1997). 182 Zippo, 952 F. Supp., at 1121. 183 Id. at 1124. The cases are scant. Nevertheless, our review of the available cases and materials reveals that the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet. Id. 184 Id. at 1122-23. 185 Id. at 1123.
87 be initiated by the defendant and must evidence the notion that the defe ndant could reasonably expect to be haled into court for such actions.186 The second prong of the te st then required that it be those volitional contacts, not some other basi s, under which the lawsuit is being brought. The third prong of the Zippo test required that exerci se of jurisdiction be re asonable, a requirement the court drew from the S upreme Courts decision in World Wide Volkswagen Corp. v. Woodson.187 There, the Supreme Court ruled that jurisd iction over the defendant was proper if the defendant should have reasonably foreseen th at his conduct could result in him being haled into court .188 To be fair, the court must consider th e burden on the defendant compared to the benefit of trying a case in a particular jurisd iction to determine if it would be acceptable to exercise jurisdiction. Conclusion The Internet is a worldwide tool that allows millions of users to send text, video and audio signals in real-time. Unlike other mass medium s, though, the Internet does not belong to any one person, company or governmental agency. Because it is a series of networks that connect the resources of governments, corporations and citiz ens, the Internet provides a series of new challenges for U.S. courts hearing cases invol ving tortuous conduct pe rpetrated online. The courts have begun to address two of these i ssues: anonymity of speakers and jurisdictional disputes. Initially, plaintiffs who were defamed online at tempted to sue Internet Service Providers. However, after conflicting court opinions, Congr ess legislated immunity for ISPs through the 186 Id. ( citing Intl Shoe 326 U.S. at 310; World Wide Volkswagen, 444 U.S. at 286; Keeton 465 U.S. at 770; and Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). 187 444 U.S. at 286 (holding that the constitution requires mo re than just mere fortuitous circumstances to allow the exercise of jurisdic tion under a state jurisdictional st atute aimed at non-residents). 188 World Wide Volkswagen Corp., 444 U.S., at 297.
88 Communications Decency Act in 1996. Once plai ntiffs could no longer succeed in defamation actions against ISPs, they were forced to target the person who initially sent the message over the Internet. The U.S. Supreme Court has never explicitly said that the First Amendment guarantees a right to speak anonymously. As a result, courts hearing online defamati on cases involving John Doe defendants have had to craft their own tests to determine when disclosure of an anonymous speakers identity is permissible. Often, thes e courts weigh two comp eting interests: an individuals right to pr otect his reputation from injury and the publics interest in promoting speech on important matters. Lower federal courts and state courts have developed a variety of tests to use in anonymous speech cases. In general these tests co ntain the same basic framework. They require an attempt by the plaintiff to notify the defenda nt, a detailed description of the cause of action and a balancing of the interest in promoting speech and protecting reputation. The courts do differ on whether the plaintiff shoul d be required to make a prima facie showing or rise to the higher standard required to survive a motion for summary judgment. Because these decisions have been made by lower federal courts and stat e courts, it will likely take a federal appellate court decision before a uni form standard evolves. Once a plaintiff has ascertained the identity of a defendant, the next step is to determine where the defendant can fairly be sued. This de termination of jurisdiction in online defamation cases has also perplexed courts. As is the case with anonymity, a number of lower federal courts and state courts have developed tests to de termine when jurisdiction over a defendant is constitutional.
89 To formulate these tests, the lower courts have looked to two key U.S. Supreme Court cases: Keeton v. Hustler and Calder v. Jones. In those cases, the Supreme Court ruled that a defendant must have some connection with th e state in which they are being sued. This connection doing business or usin g the courts in the state, fo r example must provide the defendants with enough notice that they could be called into that states courts to be held accountable for their actions. The c ourts often refer to this aspect of the test as foreseeability. In addition to the foreseeabi lity prong established in Keeton and Calder, courts dealing with online defamation cases have also looked to other Internet cases for guidance. The Zippo Manufacturing case established a three-part test to determine whether Internet contacts are sufficient to allow jurisdiction over a defendant. The first prong looks at foreseeability and mimics the Keeton and Calder tests. The second prong requires th at the defendants Internet contacts with the forum state, not some other ba sis, form the basis of the lawsuit. Finally, the Zippo test, relying on other Supreme Court jurisdiction jurisprudence, requires that the exercise of jurisdiction be reasonable. This inquiry requires the cour t to balance the burden on the defendant with the benefits of tr ying the case in the forum state. Even though the lower federal c ourts and state courts have ma naged to flesh out tests for anonymity and jurisdictional issues, they are only beginning to addres s other significant issues in online defamation cases. Courts have just started to discuss the proper definitions of community, plaintiff status and harm as they apply to onlin e defamation cases. Thus far, they seem to be applying the same principles used to establish precedent for a nonymity and juri sdiction issues: looking to analogous areas of the law, including tr aditional print and broadcast defamation cases.
90 CHAPTER 3 THE INTERNET AND FIRS T AMENDMENT THEORY The Internet as we know it e-mail, inst ant messaging, Weblogs and the like has drastically changed the face of modern communication.1 Some of its most marked modifications include both the form and de livery of a speakers message.2 As of March 2006, the Internet had a reported 1.02 billion users, or 15 percent of the wo rlds population.3 In North America, the population penetration levels were significantly higher, with more than 68 percent of the population on the information superhighway.4 That can be compared with the 51.6 percent of Americans who read a daily newspaper,5 making it easy to see the increasingly pervasive presence the Internet plays in societys expressive activities.6 First Amendment theory plays a large role in protecting expressi ve activities conducted over the Internet. In some regard, the Internet ha s helped advance a variety of justifications for free expression. For example, the Internets bl ogs and forums are the cyber-version of Londons Hyde Park, giving impassioned speakers the abil ity to have their messages heard in the marketplace of ideas. The posting of court r ecords and government documents online has only 1 (The Internet) facilitates communication in any combination of writing, sounds, and pictures. It knows no geographical boundaries: any Internet user can communi cate globally, with a potentially limitless audience. See MATTHEW COLLINS, THE LAW OF DEFAMATION AND THE INTERNET 3 (2d ed. 2005). 2 The Internet is, at its core, a medium of instantaneous, long-distance communication. It makes communicating with a thousand, or million, people no more difficult than communicating with a single person. Id 3 See World Internet Usage and Population Statistics, http:// ww w.internetworldstats.com/stats.hmt (last visited July 25, 2007). 4 Id A recent study by the Pew Internet and American Life Pr oject released in April 2006 found that 73 percent of American adults are online, compared to only 66 percent in January 2005. See MSNBC, April 26, 2006, http://www.msnbc.msn.com/id/12502178/. 5 See 2005 Newspaper Readers by the Numbers. News paper Association of America: The Source. http://www.naa.org/thesource/4.asp (last visited June 1, 2006 ). Since 1998, daily newspaper readership in the United States has declined about 7 percent wh ile the number of Americans going online for their news has skyrocketed. 6 A study released by the Pew Internet and American Life Project estimates that by the end of 2005, 50 million Americans were going online for news. See John Horrigan, Online News: For Many Home Broadband Users, The Internet is a Primary News Source, March 22, 2006, http://www.pewinternet .org/PPF/r/178/rep ort_display.asp.
91 increased the ability of citizens and the press alik e to investigate the activities of their elected representatives, further solidif ying the importance of the checki ng value. Along the same lines, citizens can use the Internet to participate in their government as well, creating Web sites in support of issues or e-mailing to start a grassroot s movement. Although the c ourts will likely rely on no single First Amendment theory to protect speech on the Internet, the combination of marketplace of ideas, checking value, self-gove rnance and self-fulfillment theories certainly provide a large base from which to choose. The Marketplace of Ideas fr om Milton to Modern Day The marketplace of ideas concept origin ated in the writings of John Milton7 and John Stuart Mill8 and has become the First Amendment theo ry cited most frequently by the U.S. Supreme Court. The theory, as it has developed, essentially posits that in a market of competing ideas, the notions of truth, or their closest appr oximations, shall rise to the surface through a robust exchange of ideas. Rooted in the work of numerous philosophers the concept took shape in Europe for more than 200 years before making its way into American jurisprudence.9 John Milton During the 17th century, in the wake of the developm ent of the printing press, a religious revolution within the English monarchy and th e Renaissance, an English writer began to philosophize about libertarian id eals and the freedom of expre ssion. As the son of a wealthy scrivener, John Milton was highly educated, with most of his studying completed in Oxford, 7 See JOHN MILTON, AEROPAGITICA (J. Suffolk ed., 1968) (1644). 8 See JOHN STUART MILL, ON LIBERTY (D. Spitz ed., 1975) (1859). 9 See generally LEONARD LEVY, THE EMERGENCE OF A FREE PRESS (1985).
92 England.10 After resolving to be a poet and writer instead of a minister, Milton began authoring works expressing his dissatisfaction with the Ch urch of England, which was inextricably linked to the countrys governance as well.11 It would be after returning fr om a trip to Italy that Milton began to admire the reformers attempts to transform the Church, leading him to pen Of Reformation in England in 1641 and The Reason of Church Government Urged Against Prelaty in 1642.12 A failed marriage and the desire for divorce le d him into the business of pamphleteering on controversial topics. A treatise e xpressing his dissatisfaction with Parliaments censoring ways would soon follow.13 In the essay Aeropagitica Milton sought to convince the English Parliament that requiring the licensure of all publications and presses was unconscionable.14 Milton, a Protestant, desi red to have his words,15 considered heretical by many, distributed publicly free of restraint. As a direct response to the Licensing Order of 1643,16 Aeropagitica decried the reintroduction of pr e-press censorship as akin to the days of the Star Chamber. It is through Aeropagitica and other writings, along with Mi ltons attempts to persuade a Puritan government to accept his ideas, that he expr essed his belief that the test of truth is its 10 John Milton, THE COLUMBIA ENCYCLOPEDIA para. 2 (6th ed. 2005), at http://www.bartleby.com/65/mi/ Milton-J.html (last visited August 24, 2006). 11 Id. 12 Id. at 4. 13 Id. 14 Se e MILTON, supra note 7. Though all the winds of doctrine were let loose to play upon the earth, so truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and falsehood grapple; who ever knew truth put to the worst, in a free and open encounter. Id 15 Milton disagreed with many of the beliefs of the An glican church, which was interwoven into the English government via the monarchy. Most of what he wrote cont ained his ill content with the churchs belief structure. See COLUMBIA ENCYCLOPEDIA, supra note 10. 16 The Milton Reading Room, (Thomas H. Luxon ed., 2006 ) http://www.dartmouth.edu/~milton (last visited August 24, 2006).
93 survival in the market. The importance lies in bringing all ideas to the surface because uplifting some while demeaning others stifles the discour se through which all ideas should be evaluated. It is that process, Milton asserted, which would separate the good ideas from the bad: Read any books whatever come to thy hands, fo r thou art sufficient both to judge aright, and to examine each matter. ... Prove all things hold fast that which is good. ... Bad meats will scarce breed good nourishment in the health iest concoction; but herein the difference is of bad books, that they to a discreet and judicious reader serve in many respects to discover, to confute, to fo rewarn, and to illustrate.17 Throughout Aeropagitica, Milton asserts the wro ngs of pre-publication censorship, belittling a system that prevents works from being printe d. Instead, he justifies a system through which blasphemous and libelous materials would be s ubject to subsequent puni shment after a trial.18 John Stuart Mill More than 200 years later, another English philosopher expanded upon Miltons libertarian perspective, advocating the existence of unpopular sentiment as an important aspect of selfgovernance.19 For a society to truly be free, John St uart Mill argued, it must be capable of allowing all ideas even those it finds most abhorrent to be expressed equally in the marketplace. In his essay On Liberty Mill posits that all expressi on, both that which is true and that which is false, has value in a society seeking to govern itself: But the peculiar evil of sile ncing the expression of an opi nion is, that it is robbing the human race; posterity as well as the existi ng generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wr ong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, pr oduced by its collision with error.20 17 See MILTON, supra note 7. 18 See The Milton Reading Room, supra note 16. 19 See MILL, supra note 8. 20 Id
94 Like Milton, Mill was concerned with the ability of the majority to silence the will of the minority through the limitation of expression. Prim arily, both applied their perspectives to argue for the right of expression by those who did not posses a stronghold in government. Mill addressed this type of subversi on in two forms: a direct attemp t to silence the majority through legislation or judicial opinion and an indirect attempt that is ca rried out via societal pressure.21 It is these acts of public authorit y and collective oppression that he argued citizens must work diligently to combat in order to achieve true self-governance. Milton and Mills formulation of the marketplace of ideas trav ersed the Atlantic Ocean and appeared for the first time in a U.S. Supreme Co urt opinion in the early 1900s. It was Justice Oliver Wendell Holmes dissent in a case abou t subversive pamphleteer ing that laid the foundation for the marketplace of ideas theory of free expression in the nations First Amendment jurisprudence.22 Since that time, the Supreme Court has continued to regularly utilize marketplace theory in cases i nvolving both print and broadcast media. Justice Oliver Wendell Holmes In Abrams v. United States the majority of the Supreme Court upheld the conviction of Jacob Abrams and his fellow pamphleteers under the Espionage Act, holding that an act of printing materials found to be scurrilous during a time when the United States was at war was not protected under the free speech gu arantees of the First Amendment.23 Abrams and the others, who were all born in Russi a, distributed literature that expressed their anti-government 21 Id 22 See generally Abrams v. United States, 205 U.S. 616 (1919) (Holmes, J., dissenting). 23 Id. at 617.
95 sentiments and outlined socialistic principles of societal control.24 The Court, in sustaining Abrams conviction, reasoned that language in the pamphlets, which intended to incite, provoke and encourage resistance to the war effort, s hould not be protected expression. It based its decision on the belief that the circulars were ai med to contravene the war effort by encouraging workers in ammunition factories and ot her war industries to halt production.25 Justice John H. Clarke, in writing for the Court, noted that ther e were times where the government would need to show more than just a mere attempt to incite.26 But, he reasoned, because of the countrys active involvement in a war effort, such a demanding showing of a clear and present danger was not required in the Abrams case.27 Justice Oliver Wendell Holmes, on the other hand, took a much different view of the speech. In his dissent, with which Justice Loui s Brandeis concurred, Holmes plainly stated: no argument seems to be necessary to show that th ese [pamphlets] in no way attack the form of government of the United States.28 Holmes clearly recognized th e ability of the government to regulate speech under the First Amendment, and ev en acknowledged that such authority must be 24 The Court discusses the contents of one particular pamphlet, citing this passage: The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine! Yes friends, there is only one enemy of the workers of the world and that is CAPITALISM. Id. at 620. 25 Id. at 623-624. A technical distinction may perhaps be taken between disloyal and abusive language applied to the form of our government or language intended to bring the form of our government into contempt and disrepute, and language of like character and intended to produce like results directed against the President and Congress, the agencies through which that form of government must func tion in time of war. But it is not necessary to a decision of this case to consider whether such distinction is vita l or merely formal, for the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war, as the third count runs, and, the defendants, in terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions nece ssary and essential to the prosecution of the war as is charged in the fourth count. Id. 26 Id. at 624. 27 Id. 28 Id. at 627.
96 given greater deference in times of conflict than in peacetime.29 In the case of Abrams pamphlets, however, he found no intent to overthr ow the government and no real imminent harm arising out of their publication.30 In evaluating this case, Holmes rejected the bad tendency test employed by the majority31 of the Court in favor of his more protective clear and present danger standard.32 Instead of denigrating Abrams message, Holm es found the protected expression of such speech to be valuable because of its potential to sway the opinion of the American populace.33 By making such a statement, Holmes asserted th at the common law crime of seditious libel no longer existed and that speakers should not be punished for speech simply because the 29 Id. at 627-628. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times. But as against dangers peculia r to war, as against others, the principle of the right to free speech is always the same. Id. 30 Id. at 628. It is only the pr esent danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private ri ghts are not concerned. Congress certainly cannot forbid all effort to change the mind of the country Id. 31 Justice John Clarke enunciated the essence of the bad tendency test by saying, Men must be held to have intended, and to be accountable for, the effects which th eir acts were likely to prod uce. Even if their primary purpose and intent was to aid the cause of the Russian Revolution, the plan of action which they adopted necessarily involved, before it could be realized, defeat of the war prog ram of the United States, for the obvious effect of this appeal, if it should become effective, as they hoped it might, would be to persuade persons of character such as those whom they regarded themselves as addressing, not to aid government loans and not to work in ammunition factories, where their work would produce bullets, bayonets, cannon and other munitions of war, the use of which would cause the murder of Germans and Russians. Id. at 621. 32 Justice Holmes would prefer to ex amine the likelihood that the speech w ill spurn the feared conduct. But as against dangers peculiar to war, as against others, the princi ple of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where privat e rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger and at any rate would have the quality of an attempt. Id. at 628. 33 Id. at 630. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to ch eck the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently thr eaten immediate interference w ith the lawful and pressing purposes of the law that an immediate ch eck is required to save the country. Id.
97 government finds it distasteful.34 More importantly, he asserted that a free exchange of ideas essentially a marketplace would result in th e strongest evaluation for the truth of ideas.35 Thus, the best way to establish the veracity of a stat ement is to allow the consuming public the ability to scrutinize it instead of initially prohibiting its expression.36 The Making of an American Marketplace Although the marketplace of id eas concept appeared in the early 1900s Supreme Court jurisprudence, it would not be until decades late r that the Court began to fully explicate the theory.37 Even then, the marketplace of ideas as a justification for free expression fell in and out of favor as the composition of the Court shifte d. But throughout the nearly 90 years that the theory has been mentioned in American jurisp rudence, the justices who have relied on the marketplace metaphor gradually applied it to nearly all realms of speech, from the mostprotected political expression to the less-revered commercial speech. The term marketplace of ideas first app eared in a concurrence by Justice William Brennan in the 1960s. Writing in c oncurrence with the majority in Lamont v. Postmaster General of the United States Brennan discussed the effects of a statute allowing the retention 34 Id at 630-631. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 (Act July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping comma nd, Congress shall make no law abridging the freedom of speech. Of course I am speaking only of expr essions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States. Id. 35 Id. 36 Id. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow op position by speech seems to indicate that you think the speech impotent, as when a man sa ys that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. Id. 37 See generally W. Wat Hopkins, The Supreme Court and the Marketplace of Ideas 73 JOURNALISM & MASS COMM. Q. 40 (1996). Use of the marketplace of ideas metaphor by justices has increased dramatically, particularly in the 1970s, and co ntinues to increase. Id.
98 and destruction of open mail that contained communist political propaganda and originated in foreign countries.38 In his opinion, Brennan agreed with th e majority, noting that the statute was content-based and, therefore, highly suspect.39 In support of his decision to strike down the regulation, Brennan wrote that th e marketplace of ideas would be a meaningless metaphor if the First Amendment provided only for unfettered acce ss by speakers without a concomitant right of receipt for listeners.40 Thus, Brennan recognized a recipi ent-based principle similar to the principles enunciated in Abrams : Expression gains value not ba sed upon its content but upon its acceptance in society. In Lamont the very demand for unfettered access to such mail, Brennans argument asserted, was indicative of its value in the marketplace. Similarly, the argument would follow that the very desire of a party to limit ac cess to the speech is indicative of the powerful nature of the message. More than 40 years passed between Holmes dissent in Abrams and a majority of the Courts willingness to consider the marketpl ace rationale. Although Brennans arguments in Lamont were not persuasive enough to gain a majority of the court, they seem to have resonated with some members of the c ourt. Only in 1967 did Justice Brennan, who had authored the concurrence in Lamont two years earlier, find a majority of the Court41 willing to sign onto the marketplace theory, first in an educational speech case.42 In Keyishian v. Board of Regents 38 See Lamont v. Postmaster General of the United States, 351 U.S. 301 (1965) (Brennan, J., concurring). 39 Id. 40 Id. at 308. I think the right to receive publications is such a fundamental right. Th e dissemination of ideas can accomplish nothing if otherwise willing ad dressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers. Id. 41 The marketplace justification had been earlier raised by in a plurality opini on by Chief Justice Earl Warren and a concurrence in result by Justice Felix Frankfurter in Sweezy v. State of New Hampshire See 354 U.S. 234 (1957). 42 See Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967) (holding that a New York statute making treasonable or seditious words or acts grounds for removal from public school system or state employment was unconstitutionally vague and violated First Amendment).
99 which prohibited a state university in New York from firing teacher s based on their expression of subversive views, Brennan argued that educational facilities quintessentially function as miniature markets where dialogue is supposed to lead the pa rticipants toward the truth.43 To justify his opinion, Brenna n quoted a passage from Sweezy v. State of New Hampshire44 surmising that students and teachers must always be free to inquire into new and even unpopular sentiments in order to promote discovery.45 In Keyishian the Court recognized, for the first time, a functioning marketplace with in the educational system. In 1972, Justice Lewis Powell subsequently reit erated the role of the marketplace in education when writing for the Court in Healy v. James .46 In that case, administrators at Central Connecticut State College had denied the petition of a stude nt group seeking to become a recognized student organization.47 The group, Students for a Democratic Society, filed suit claiming the denial of the application abridge d their First Amendment rights by limiting access to campus resources, including places to meet and the student newspaper.48 The Supreme Court ruled that the colleges denial of recognition, based in part on the affiliation of the local student 43 Keyishian, 385 U.S. at 603. The classroom is peculiarly th e marketplace of ideas. The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, (rather) than through any kind of authoritative selection. Id. 44 Sweezy, 354 U.S. at 234. 45 Keyishian, 385 U.S., at 603 ( quoting Sweezy, 354 U.S. at 250). The essen tiality of freedom in the community of American universities is almost self-e vident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die. Id. 46 See 408 U.S. 169 (1972). The college classroom with its surrounding environs is p eculiarly the marketplace of ideas, and we break no new constitutional ground in reaffi rming this Nation's dedication to safeguarding academic freedom. Id. at 180-181. 47 Id. at 171. 48 Id. at 170-1.
100 group with a national group, was a violation of the students First Amendment associational rights. Doing so, the Court remanded the case fo r a determination of whether a constitutional reason for the denial could be proven by the coll ege, which bore the burden of justifying its denial once the students complied with the filing requirements that had been established by the university.49 In both Keyishian and Healy the majority relied on the marketplace rationale to supplement its reasoning for protecti ng speech in an educational setting.50 Since 1972, various decisions have recognized the importance of the marketplace in numerous other expressive contexts.51 Criticisms of the Marketplace Metaphor However, some justices and scholars have been quite critical of th e Courts reliance upon the marketplace metaphor, insisting that the premis es upon which the theory of free expression is based are themselves flawed.52 In 1967, only two years afte r Justice Brennan penned his concurrence in Lamont law professor Jerome A. Barron issu ed a critique of the marketplace metaphor in his Harvard Law Review article titled Access to the Press A New First Amendment Right.53 Barron suggested that the Supreme C ourts precedent in Times v. Sullivan may actually harm First Amendment expressive right s. By protecting the media from libels suits, 49 Id. at 186-187. Students for a Democratic Society, as c onceded by the College and the lower courts, is loosely organized, having various factions and promoting a number of diverse social and political views only some of which call for unlawful action. Not only did petitioners proclaim their complete independence from this organization, but they also indicated that they shared only some of the beliefs its leaders have expr essed. On this record it is clear that the relationship was not an adequate ground for the denial of recognition. Id 50 See, e.g., Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 U.S. 503, 512 (1969). Justice Abe Fortas majority opinion again makes reference to the accurateness of th e marketplace metaphor for the educational environment. Id. 51 See infra 52 See, e.g. Jerome A. Barron, Access to the Press A New First Amendment Right 80 HARV. L. REV. 1641 (1967). The Justices of the United States Su preme Court are not innocently unaware of these contemporary social realities, but they have nevertheless failed to give the marketplace of ideas theory of the first amendment the burial it merits. Id. at 1647. 53 Id
101 the Court had essentially removed the ability of a cer tain class of people public officials, in this case to fight back, he argued.54 Barron asserted that our ro mantic ideals of the First Amendment have prevented courts and legal scholars from examini ng the availability to various interest groups of access to means of communication.55 Instead, our system has focused on preventing government intervention into the pres s because we believe that would cut into the desirable free flow of information so frequently mentioned in court opinions.56 The greater malady, Barron argued, was that po werful speakers woul d drown out the less powerful based on a greater ability to access mass communicative tools.57 Relying on Alexander Mieklejohns belief that it does not matter how many people get to speak, but instead that all viewpoints are represented,58 Barron suggested that courts shou ld focus on securing access to the media for those perspectives.59 Gone are the days when the gove rnment is the most likely censor of controversial ideas, Barron argued. Instead, he said Big Media the newspapers, television stations, radio stations and other outlets are now in a prime position to control access based on their market power.60 In place of the traditional First Am endment protections, Barron suggested 54 Id. at 1658. If financial immunization by the Supreme Court is necessary to ensure a courageous press, the public officials who fall prey to such judicially reinforced lions should at least have the right to respond or to demand retraction in the pages of the newspapers which have published charges against them. Id. 55 Id. at 1642. 56 Id 57 Id. at 1643. This indifference becomes critical when a comparatively few private hands are in a position to determine not only the content of information but its very availability, when the soap box yields to radio and the political pamphlet to the monopoly newspaper. Id. 58 ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 25-28 (1960). 59 Barron, supra note 52, at 1654. If those media are unavailable, ca n the minds of "hearers" be reached effectively? Creating opportunities for expression is as important as ensuring the right to express ideas without fear of governmental reprisal. Id. 60 Id. at 1655.
102 a right to be heard.61 As a result of Barrons belief that a ll points of view should be represented in the marketplace,62 he concluded the Constitution necessitated this right of access to the marketplace.63 Such a right of access to the media was necessary,64 in Barrons view, to encourage the robust debate necessary in the marketplace of ideas because the mass communication media are controlled by only a few.65 To create such a right, Barr on discussed several mechanisms that could be implemented within the framework of the existing mass communi cation media at that time. For example, he suggested a viewpoint-neutral right of access to newspapers through the use of both letters to the editor and advertising.66 Barron noted that case law at the ti me he was writing could be read in a manner that would not prohibit such a right. In addition, he posited that one could argue that newspapers, often operating in monopolistic ma rket conditions, become quasi-public entities.67 As such, they become an extension of the government and could be prevented from limiting public access to their pages.68 Although Barrons suggestions we re never fully heeded, the 61 Id. at 1656. 62 Id. at 1653-1654. Constitutional opinions that are particularly solicitous of the interests of mass media radio, television, and mass circula tion newspaper devote little thought to th e difficulties of securing access to those media. If those media are unavailable, can the minds of "hearers" be reached effectiv ely? Creating opportunities for expression is as important as ensuring the right to express ideas without fear of governmental reprisal. Id. 63 Id. at 1666-1668. 64 With the development of private restraints on free expression, the idea of a free marketplace where ideas can compete on their merits has become just as unrealistic in the twentieth century as the economic theory of perfect competition. The world in which an essentially rationalist philosophy of the first amendment was born has vanished and what was rationalism is now romance. Id. at 1678. 65 Id. at 1667. 66 Id. at 1669. 67 Id. at 1670. 68 Id.
103 Supreme Court did apply his logi c in at least one major First Amendment case decided not long after his article was published.69 The Court implements a right of access Not long after Barron launched his assau lt on the marketplace metaphor in his 1967 Harvard Law Review article, the Supreme Court relied upon the very marketplace metaphor it had earlier used to justify freedom of expression in one context to compel other expression in another. In Red Lion Broadcasting Company v. Federal Communications Commission,70 the Court mandated access to broa dcast outlets speakers in much the same way Barron had described. Justice Byron White found broadcasting to represent an excellent marketplace model in an oft-quoted passage from Red Lion .71 For the first time, the Courts opinion relied on the marketplace rationale as one of the cornerstones of its decision. The majority ruled that Federal Communication Commissions fairne ss policies enhanced the publics ability to speak without unconstitutionally infringing upon broa dcasters First Amendment right s. The Court noted it is the right of the public to receiv e suitable access to social, politi cal, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.72 Red Lion, then, was a major victory for Barrons accessbased marketplace model, at l east in the broadcast realm. 69 See Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969). 70 See id 71 It is the purpose of the First Ame ndment to preserve an uninhibited ma rketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. Id. at 390. 72 Id.
104 Returning to recipient-based marketplace models Although a right-of-access argument carried the day in Red Lion the Court was quick to return to its recipient-focused reliance on the ma rketplace and hesitant to apply a right of access to the print media. Paralleling the early market place jurisprudence, Justice Harry A. Blackmun, writing for the Court in 1972 in Kleindienst v. Mandel ,73 discussed the recipient-based rationale established by Justice Brennan in Lamont In dicta, Justice Blackmun wrote that a marketplace requires both the ability to provide and receiv e information in order to properly function.74 Although the Court did not decide the case based on solely a Firs t Amendment argument, Justice Blackmun wrote: While alternative means of access to Mandel's id eas might be a relevant factor were we called upon to balance First Amendment rights ag ainst governmental regulatory interests a balance we find unnecessary here in light of the discussion that fo llows we are loath to hold on this record that ex istence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access.75 The Supreme Court has also addressed some economic limitations of the marketplace of ideas. In Miami Herald Publishing Company v. Tornillo the Court noted that a true marketplace of ideas may have existed when members of the public could access many mediums to communicate at low cost.76 Justice Warren Burger, writing fo r the Court, reasoned that the decrease in the suitability of books and pam phlets, and the increased reliance on electronic 73 In the case, the Court was asked to co mpel the attorney general to issue a temporary visa to a foreign scholar who had been invited to the U.S. to particip ate in academic conferences and discussions. 74 See Kleindienst v. Mandel, 408 U.S. 753 (1972) (holding that attorney general had validly exercised plenary power delegated to the Executive and the courts would not second guess his decision or weigh it against the First Amendment interests of those seeking entry of alien to personally communicate with him or engage in academic exchange). 75 Id. at 765. 76 See 418 U.S. 241 (1974) (holding that a Florida right to reply statute was an unconstitutional infringement on a publishers editorial discretion and therefore violated his First Amendment right to free expression).
105 media, had altered the marketplace and created economic conditions that were not present in years past: Entry into publishing was inexpensive; pamphlets and books provided meaningful alternatives to the organized press for the expression of unpopular id eas and often treated events and expressed views not covered by conventional newspapers. A true marketplace of ideas existed in which there was rela tively easy access to the channels of communication.77 Noting the increased inability of citizens to participate in the marketplace, the Court mentioned the disappearance of competing metropolitan dail y newspapers, the federal antitrust exemption for newspapers78 and an increase in corporate ownership of the media.79 Once the Court became more comfortable relying on the marketplace metaphor, the justification crept into cases involving othe r types of First Amendment speech, including commercial speech. Full-fledged reliance on the mark etplace rationale in the commercial speech context arose in a pair of cases in the mid-1970s.80 Both cases provided increased protection for commercial speech. In Bigelow v. Virginia the Court struck down a Virginia statute that criminalized the circulation of any publication promoting or en couraging the procurement of abortion services.81 One year later, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. the Court struck down a Virginia statute making it a violation of 77 Tornillo, 418 U.S. at 248. 78 See generally Newspaper Preservation Act, 43 U.S.C. 1801 (1970); Amy Kristin Sanders, Market Definition, Merger Review, and Media Monopolization: Congressional Approval of the Corporate Voice Through the Newspaper Preservation Act, 59 FED. COMM. L.J. 403 (2007). 79 Tornillo, 418 U.S., at 251. The First Amendment interest of the public in being informed is said to be in peril because the marketplace of ideas is today a monop oly controlled by the owners of the market. Id. 80 See Bigelow v. Virginia, 421 U.S. 809 (1975) (holding that speech is not stripped of First Amendment protection merely because it appears in form of a paid commercial advertisement); Virginia St ate Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 728 (1976) (holding that statutory bans on advertising prescription drug prices violated the First and Fourteenth Amendments and could not be justified on the basis of the state's interest in maintaining the prof essionalism of its licensed pharmacists). 81 Bigelow 421 U.S. at 809.
106 professional conduct for pharmacists to adver tise the prices of prescription drugs.82 In both instances, the Court relie d upon the marketplace of ideas to ju stify allowing the expression. The Bigelow majority reasoned: To the extent that commercial activity is subject to regulation, the relationship of speech to that activity may be one factor, among others to be considered in weighing the First Amendment interest against the governmental in terest alleged. Adver tising is not thereby stripped of all First Amendment protection. Th e relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas.83 This dicta, which appeared in suppo rt of the majority decision in Bigelow appeared again in Virginia Pharmacy Board,84 where the majority attempted to provide further protection for commercial speech. Its inclusion signified a growi ng acceptance of the marketplace rationale in a commercial speech context. Although acceptance of the marketplace theory of free expression seemed to follow a logical path from political speech in Abrams to social speech in the education cases, and commercial speech in Va. Pharmacy Board its inclusion in First Amendment jurisprudence was not without opposition. Even though a majority of the Court had accepted the marketplace rationale during the 1970s, the appointment of Justice William Rehnquist ensured that the battle to preserve the marketplace would c ontinue. Rehnquist had dissented in Bigelow and Va. Pharmacy Board laying the foundation for a career of criticizing the marketplace metaphor.85 Even before Justice Rehnquists appointment to the Court, some justices had posited that the marketplace rationale was not always the perfect fit to protect expression.86 82 Virginia Pharm. Bd. 425 U.S. at 728. 83 Bigelow 421 U.S. at 826. 84 Virginia Pharm. Bd. 425 U.S. at 760. 85 See infra 86 See generally Time Inc. v. Hill, 385 U.S. 374 (1967) (holding that the First and Fourteenth Amendment require that defendant magazine publisher was entitled to instruction that verdict of liability in action brought under New
107 Malaise with the Marketplace Not surprisingly, the marketplace concept has not been accepted by all members of the Court as a justificati on for free expression. And even thos e who have supported the notion at times have asserted at other points that the fail ure of the market in certain respects justified government intervention in e xpression through regulation.87 Only two years after Justice William Brennan relied on the marketplace theory in a sender/receiver context, Justice John Marshall Harlan, concurring in part in the Courts 1970 Time, Inc. v. Hill decision, observed that the marketplace rationale failed to support a co nclusion that a publisher must publish private facts with actual malice before a private person can recover in tort.88 In essence, Justice Harlan believed that the market would not provide adeq uate protection for the private person who was harmed by publication of private facts: To me this seems a clear rec ognition of the fact that fals ehood is more easily tolerated where public attention creates the strong like lihood of a competition among ideas. Here such competition is extremely unlikely for the scrutiny and discussion of the relationship of the Hill incident and the pl ay is occasioned by the particular charges in controversy and the matter is not one in which the public has an independent interest.89 Hill provides just one example of a context in which a justice has refused to apply the marketplace theory, instead assert ing other justificati ons of free expression to grant speakers First Amendment protection.90 York right of privacy statute, wherein it was alleged that magazine falsel y reported that play portrayed experience suffered at hands of escaped convicts by plaintiff and his family, could be predicated only on finding of knowing or reckless falsity in publication of article.) 87 Id. at 406 (Harlan, J., concurring in part). The market place of ideas, where it func tions, still remains the best testing ground for truth. Id. 88 Id. at 407. First, we cannot avoid r ecognizing that we have entered an ar ea where the marketplace of ideas does not function and where conclusions premised on the ex istence of that exchange are apt to be suspect. Id. 89 Id. 90 Interestingly, in one of the quintessential First Ame ndment cases of the Twentieth Century, the Supreme Court chose not to mention the marketplace of ideas rationale. In deciding New York Times v. Sullivan Justice Brennan and the majority held that public officials and public figures would have to prove actual malice to recover damages
108 Similarly, shortly after the C ourts use of the marketplace metaphor in the educational setting in the late 1960s and early 1970s,91 it recognized a flaw in the marketplace theory.92 As law professor Stanley Ingber pointed out, the mark etplace theory assumes its participants have the knowledge and means necessary to a ssist in the acquisition of truth.93 In San Antonio Independent School Dist rict v. Rodriguez Justice Powell writing for the majority in a case about education funding, noted the marketplace of idea s is an empty forum for those lacking basic communicative tools.94 In making this assertion, Justice Po well concluded that for an exchange of ideas to occur, participants must come to the marketplace willing to engage in informed debate because that is th e essence of how a divers ity of ideas is shared.95 While recognizing the necessity of education to the marketplace of ideas, the Court stopped short of strictly scrutinizing the State of Texas educational spending, which varied significan tly among districts.96 First Amendment scholars, including C. Edwi n Baker, Fred Schauer and Ingber, have suggested that the primary assumption on whic h the marketplace metaphor is founded that truth can be both discovered and verified is flawed.97 Ingber asserted that truth, as an objective in a defamation case. However, the Court said nothing explicitly about the mixed political speech/commercial speech in the case nor did it mention the marketplace as functio ning to serve that interest. This could, in part, be attributed to the year in which the case was decided, which was several y ears before the education speech cases. See 376 U.S. 254 (1964). 91 See infra discussing Keyishian and Healy 92 See generally San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1 (1973) (holding that a system which assured basic education for every child in the state and permitted pa rticipation in and significant control of each district's schools at local level bore a rational relationship to leg itimate state purpose and did not violate equal protection clause of the Fourteenth Amendment). 93 See Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 15. 94 San Antonio Ind. School Dist. 411 U.S., at 35. 95 Id. 96 Id. at 40. 97 See FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 15-34 (1982); C. Edwin Baker, The Process of Change and the Liberty Theory of the First Amendment 55 S. CAL. L. REV. 293 (1982).
109 concept, is nonexistent because if truth were objective, it would not be colored by a persons experiences in life, socioeconomic status or other subjective factors.98 Any truth that emerges, Baker said, does so through the existing struct ures, which reinforce power over intellect.99 Calling the First Amendment institutionalized, Ba ker noted it is not equipped to promote fundamental, progressive change.100 which serves to reinforce majoritarian perspectives and the status quo while diminishing the value of opposing viewpoints.101 Another problem with the acquisition of truth in the marketplace lies in the irrationality of the truth seekers in the market.102 Ingber noted that a functioning marketplace rests on the assumption that ideas are evaluated not on the manner in which they ar e presented but on the merit of their substance.103 As such, the marketplace breaks down when information seekers either cannot, or do not, distingu ish between ideas with depth and shallow ideas that are merely dressed up in a nice presentation.104 Critical consumption through education, as Justice Brennan noted in his dissent in San Antonio then becomes a core requirement for the marketplace to function.105 98 Ingber, supra note 93, at 15. 99 Baker, supra note 97, at 330. 100 Id. at 330. 101 Id. at 342. Given that the value of the marketplace is basically instrument al, the marketplace theory provides little reason to protect conduct that is not welfare maxi mizing or even to protect communications more than is necessary for promoting the general welfare. Id. 102 Ingber supra note 93, at 15. 103 Id. 104 Id. 105 [T]here can be no doubt that education is inextricably linked to the right to particip ate in the electoral process and to the rights of free speech and as sociation guaranteed by the First Amendment. See post, at 1336-1339. This being so, any classification affecting education mu st be subjected to stri ct judicial scrutiny, San Antonio, 411 U.S., at 63. (Brennan, J., dissenting).
110 The Modern American Market: Rehnquists Legacy From nearly his first opinion as a member of the Court, Justice William Rehnquist vocally opposed reliance on the marketplace metaphor in a vari ety of contexts. As a junior justice, he wrote adamant dissents in both Bigelow and Virginia Pharmacy Board where the majority established that commercial speech would receive limited First Amendment protection.106 In both cases, he made clear a belief that even th e marketplace rationale should not overcome the ability of the government to regulate speech that is of a purely commercial nature: The logical consequences of the Court's deci sion in [Virginia Bo ard], a decision which elevates commercial intercourse between a sell er hawking his wares and a buyer seeking to strike a bargain to the same plane as has b een previously reserved for the free marketplace of ideas, are far reaching indeed. Under the Court's opinion the way will be open not only for dissemination of price information but for active promotion of prescription drugs, liquor, cigarettes, and other pr oducts the use of which it has previously been thought desirable to discourage.107 Subsequently, Justice Rehnquists ju risprudence continued to critic ize the Courts reliance on the marketplace rationale in commercial contexts108 and expanded his focus to target corporate speech that might contain mixed commercial and political messages.109 Justice Rehnquist made his views qu ite clear in his biting dissent in Central Hudson Gas and Electric Corporation v. Public Service Commission ,110 the landmark commercial speech case that established a 4-part te st to determine whether commerci al speech should receive First 106 Bigelow 421 U.S. at 826. 107 Virginia Pharm. Bd ., 425 U.S. at 781. 108 See Central Hudson Gas and Elec. Corp. v. Pub. Serv. Commn, 427 U.S. 557 (1980); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). 109 First Natl Bank of Boston 435 U.S., at 765. (holding there was no support in the Constitution for the proposition that expression of views on issues of public importance loses First Amendment protection simply because its source is a corporation that cannot prove that the issu es materially affect the corporation's business). 110 Central Hudson, 427 U.S. at 592.
111 Amendment protection. There, he posited that the marketplace metaphor provides little guidance in legal determinations of wh ether to protect expression: While it is true that an important objective of the First Amendment is to foster the free flow of information, identification of speech th at falls within its pr otection is not aided by the metaphorical reference to a marketplace of ideas. There is no reason for believing that the marketplace of ideas is free from market imperfections any more than there is to believe that the invisible hand will always lead to optimum economic decisions in the commercial market.111 Throughout the 1970s and early 1980s, while the Court as a whole seemed to embrace a broader vision for the marketplace of ideas through its application in social and commercial speech contexts, Justice Rehnquist continued to assert th at the marketplace rationale was not the correct path to justifying protected e xpression. Instead, Justice Rehnquist vocalized his dissatisfaction with reliance on a concept he believed to be flawed.112 Despite Rehnquists opposition, other members of the Court remained adamant about their belief in the role of the mark etplace. For example, long-time ma rketplace advocate Justice John Paul Stevens, with whom Justices Brennan and Powell concurred, wrote in Minnesota State Board for Community Colleges v. Knight : But the First Amendment does guarantee an ope n marketplace of ideas where divergent points of view can freely compete for the attent ion of those in power and of those to whom the powerful must account.113 However, in 1984, Rehnquist was appointed Chief Ju stice. In the years that followed, the Courts view of free expression began to shift. Although the majority ruled in favor of publisher 111 Id. Indeed, many types of speech have been held to fall outside the scop e of the First Amendment, thereby subject to governmental regulation, despite this Court's references to a marketplace of ideas. Id. 112 See, e.g., U.S. v. Natl Treasury Employees Union, 513 U.S. 454 (1995). 113 495 U.S. 371 (1984) (holding unconstitutional a Minnesota statute requiring public employers to engage in official exchanges of views only with their professional employees' ex clusive representatives on policy questions relating to employment but outside scope of mandatory bargaining).
112 Larry Flynt, Chief Jus tice Rehnquists opinion in Hustler Magazine v. Falwell114 signaled a shift in the Courts First Amendment jurisprudence.115 Writing for the Court in 1988, he clearly indicated that reference to the marketplace metaphor would no longe r sway the Court in all First Amendment cases: False statements of fact are pa rticularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual's reputation that cannot easily be repaired by counte r-speech, however persuasive or effective.116 In that same term, Chief Justice Rehnquist jo ined Justice Sandra Day OConnor in an opinion where she stated traditionally, the constitutional fence around this metaphorical marketplace of ideas had not shielded the actual marketpla ce of purely commercial transactions from governmental regulation.117 With Justice OConnor recognizing the limitati ons of the marketplace rationale, Chief Justice Rehnquist had found an a lly on the court. Fewer than 10 years later in 1995, Justices Antonin Scalia and Clarence Thomas joined Rehnquists dissent in U.S. v. National Treasury Employees Union where the Chief Justice argued for the constitutionality of a subsection of Ethics in Government Act pr ohibiting the receipt of honoraria by government employees.118 In 114 485 U.S. 46 (1988) (holding that that First and Fourteenth Amendments prohibited public figure from recovering damages for tort of intentional infliction of emotional distress). 115 See id 116 Hustler, 485 U.S. at 52. 117 See Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988) (holding that State could not, consistent with First and Fourteenth Amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and non-deceptive letters to po tential clients known to f ace particular legal problems ). Id. at 483 (OConnor, J., dissenting). 118 See Treasury Employees, 513 U.S. at 491. (Rehnquist, C.J., dissenting). As a result, the ban does not raise the specter of Government control ove r the marketplace of ideas. Id.
113 his opinion, he asserted that content-neutral restrictions on speech do not jeopardize the marketplace because they do not discriminate based on viewpoint.119 Chief Justice Rehnquist shortly thereafter joined in a biti ng dissent written by Justice Scalia that criticized, and ev en mocked, the majoritys use of the marketplace metaphor in McIntyre v. Ohio Elections Commission .120 In McIntyre the majority struck down an Ohio statute that banned the disseminati on of anonymous election pamphlets.121 The majority, recognizing the equivalent value of both anonym ous and non-anonymous speakers in the market, found the First Amendment prohib ited such a restriction: The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desi re to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the cont ent of a publication, is an aspect of the freedom of speech protected by the First Amendment.122 Scalia and Rehnquist countered: Preferring the views of the English utilitarian philosopher John Stuart Mill to the considered judgment of the American people's elected representatives from coast to coast, the Court discovers a hitherto unknown right -to-be-unknown while engaging in electoral politics. I dissent from this imposition of free -speech imperatives that are demonstrably not those of the American people today, and that there is inadequate reason to believe were those of the society that begat the First Amendment or the Fourteenth.123 119 Id. 120 McIntyre, 514 U.S. at 334 (Scalia, J., dissenting). 121 Id. at 341-342. 122 Id 123 Id. at 371.
114 As the Chief Justice, sitting with conserva tives Thomas and Scalia, Rehnquists arguments began to take hold.124 However, the Supreme Courts advoc ates of the mark etplace rationale have relied on the metaphor to wi n several First Amendment victor ies while sitting as members of the Rehnquist Court. The most recent example occurred in the late 1990s when the Supreme Court struck down sections of the Communica tions Decency Act. While writing for the majority, which held that certain provisions of the act were content-base d and unconstitutional as applied to Internet communi cation, Justice Stevens noted: The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the In ternet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that gove rnmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.125 During Rehnquists nearly two decades as chief ju stice, successful reliance on the marketplace of ideas as justification for free expression waned.126 Although certain members of the Court continue to rely on the philosophy originated in the work of Milton and M ill, it has become more difficult for a majority of the Court to accept this rationale. 124 See Denver Area Educational Telecommunications Consortium v. F.C.C., 518 U.S. 727, 812 (1996) (Thomas, J., concurring in part, and dissenting in part). 125 See Reno v. ACLU, 521 U.S. 844 (1997) (holding provisio ns of the CDA prohibiting transmission of obscene or indecent communications by means of telecommunications device to persons under age 18, or sending patently offensive communications through use of interactive computer service to persons under age 18, were content-based blanket restrictions on speech, and, as such, could not be properly analyzed on First Am endment challenge as a form of time, place, and manner regulation). 126 Since 1997, the only Cour t opinions that mention th e marketplace rationale are McConnell 540 U.S. 93 (2003) (upholding the provisions of the Bipartisan Campaign Reform Act) and Hicks 539 U.S. 113 (2003) (holding that a housing development policy on pamphleteering prohibited substantial amount of protected speech in relation to its many legitimate applications).
115 Recognition of the Intern et in the Marketplace Expression of ideas to member s of the public has long played a key role in societys discourse from Isocrates ci tizen orator in ancient Greece127 to the Internet chatrooms of the 1990s and the blogosphere today.128 Contrary to A.J. Lieblings of t-quoted belief that freedom of the press exists only for those who own one,129 modern forms of mass communication have made it increasingly easy for the average person to share expression with a large audience.130 One of the strongest counterarguments to the marketplace critics is the growing ability of everyday citizens to get their messages heard via the Internet.131 At lease one scholar has posited that the Internet offers the best chance at a truly functioning marketplace of ideas.132 The Internet and Other First Amendment Theories The marketplace of ideas justification for free speech ties closely to several other theories of free expression, including Al exander Meiklejohns self-gover nance theory, Vincent Blasis checking value and Thomas Emersons self-fulfi llment theory. The Supreme Court has relied on aspects of all four of these First Amen dment theories to protect expression. 127 For a discussion of Isocrates an d the role of th e citizen orator, see generally ISOCRATES. THE RHETORICAL TRADITION. (Patricia Bizzell & Bruce Herzberg, eds. 2d ed. 2001). 128 See Chris Nolan, Blogs Power Stretches Far Beyond Politics. E-WEEK, Jan. 5, 2005, http://www.eweek.com/article2/0,1759,1748637 ,00.asp (last visited Sept. 1, 2006). 129 A.J. Liebling, THE NEW YORKER, May 14, 1960. 130 COLLINS, supra note 1, at 3. As the Internet makes instantaneous global communication available to so many people, it has the potential to create new communities united by common interest, rather than geography. It is a medium which celebrates and encourages free speech and the exchange of ideas. Id. 131 Reno 521 U.S. at 870. 132 See Edward L. Carter, Outlaw Speech on the In ternet: Examining the Link Between Unique Characteristics of Online Media and Criminal Libel Prosecutions 27 SANTA CLARA COMPUTER & HIGH TECH. L.J. 289, 316-17 (2005).
116 Alexander Meiklejohn and Self-Governance Alexander Meiklejohn drew upon the history of the ancient Greeks as well as English philosopher John Lockes notions of government, when he wrote that free speech is justified by its relationship to self-governance.133 In this type of self-govern ing society, Meiklejohn argues that citizens play the role of both the governors and the governed.134 As such, the people can resort to force to compel one another to follow the laws that have been established by the selfgoverning society.135 This is because all members of the self-governing society have had the opportunity to participate in the rule-making a theory that oper ates similarly to John Lockes Social Contract.136 It was participation in the governing proce ss that was the crux of Meiklejohns argument for free speech. Thus, the town hall meeting an alogy upon which he drew plays a prominent role in his explanation of the theory of self-governance.137 Using the town meeting as an example, Meiklejohn asserted that freedom of speech require s not that every person be allowed to speak, but instead that every point of view is allowed to be spoken.138 Meiklejohn drew a distinction between free spe ech and freedom of speech, noting that the First Amendment was concerned not with the rights of individuals but inst ead with the power of 133 See, e.g., ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948); ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE (1960). 134 MEIKLEJOHN, FREE SPEECH, supra note 133 at 6. 135 Id. at 8. 136 Id. at 9. At the bottom of every plan of self-government is the basic agreement, in which all the citizens have joined, that all matters of public policy shall be decided by corporate action, that such decisions shall be binding on all citizens whether they agree with them or not, and that, if need be, they shall, by due legal procedure, be enforced upon anyone who refuses to conform to them. Id. 137 Id. at 22. 138 Id. at 25-26. The First Amendment, then, is not the guardi an of unregulated talkativeness. It does not require that, on every occasion, every citizen sh all take part in public debate. Nor can it even give assurance that everyone shall have the opportunity to do so. Id. at 25.
117 the citizenry to rule itself. Freedom of speec h, what is guaranteed by the First Amendment, provides the means through which the governed can obtain the information needed to make informed choices about their governance. The Fi rst Amendment does not pr otect a freedom to speak. It protects the freedom of those activ ities of thought and co mmunication by which we govern. . In distinguishing between free speech and freedom of speech, then, Meiklejohn asserted the right to limit deba te in ways that best serve th e voting body by en suring the voters are as informed as possible.139 Thus, their participation would be enhanced by free speech. As a result, Meiklejohn concerned himself with the protection of political speech, which he once referred to as hostile criticism,140 as opposed to commercial speech. In emphasizing this view, Meiklejohn even wrote about his belief that commerce has a corrupting influence on politics.141 The Supreme Court and Self-Governance Alexander Meiklejohns writings on self-gove rnance would influence one of the Supreme Courts landmark First Amendment cases, New York Times v. Sullivan. As Justice Brennan noted in his 1965 lecture at Brown University,142 with New York Times v. Sullivan and Louisiana v. Garrison, the Supreme Court embraced a vision of the First Am endment that paralleled the writings of Meiklejohn.143 In doing so, the justices have in their opinions documented their belief that the central meaning of the First Amendmen t is to protect expression aimed at furthering a self-governing society.144 Speaking of the Sullivan decision, Brennan said, For speech 139 Id. at 22-25. 140 MEIKLEJOHN, FREE SPEECH, supra note 133, at 10. 141 MEIKLEJOHN, POLITICAL FREEDOM, supra note 133, at 73-74. 142 See William J. Brennan, The Supreme Court and the Meiklejohn In terpretation of the First Amendment, 79 HARV. L. REV. 1 (1965). 143 Id. at 19. 144 See infra
118 concerning public affairs is more than self-expr ession; it is the essenc e of self-government.145 Since Sullivan, numerous justices have cited Meiklejohn s writings in their opinions to further assert his self-governance theo ry to protect free expression.146 The Courts enunciation of th e self-governance theory to pr otect free expression comes across quite clearly in New York Times v. Sullivan.147 In the case, which pitted one of the nations largest newspaper publishers against th e city commissioner of Montgomery, Alabama, the Court held that public officials could not succeed on a defamation claim without proving the defamatory statements had been printed with actual malice.148 In doing so, one of the chief reasons cited by Justice Brennan was the First Am endments mandate that there be protection for public criticism of the government and its officials: Thus we consider this case against the background of a pr ofound national commitment to the principle that debate on public issues s hould be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.149 In writing for the Court, Jus tice Brennan enunciated the protec tion of self-governance to be the central meaning of the First Amendment. Br ennan looked back to the writings of Madison and Jefferson to elicit the principles on whic h the nations government had been founded. In doing so, he emphasized that the right to public discussion about government was entrenched in the nations history, putting to rest any notion that the Sedition Acts or other laws punishing 145 Brennan, supra note 142, at 18. 146 See, e.g., Garrison v. Louisiana, 379 U.S. 64 (1964); Saxbe v. Washington Post Co., 417 U.S. 843 (1974); Virginia Pharm. Bd. 425 U.S., at 748. 147 Times v. Sullivan 376 U.S. 254 (1964). 148 Id. at 283. We hold today that 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. Id. 149 Id. at 270.
119 seditious libel could be held cons titutional under the First Amendment.150 Brennans central meaning, as he defined it, served to establish a core of speech that w ould be recognized by the Court as worthy of receiving pr otection because it is speech: without which democracy cannot function, wi thout which, in Madison's phrase, the censorial power would be in the Government over the people and not in the people over the Government. This is not the whole m eaning of the Amendment. There are other freedoms protected by it. But at the center th ere is no doubt what speec h is being protected and no doubt why it is being protected.151 Thus, the Court could rest its decision in Sullivan on this notion that sp eech by citizens about their government must be constitutionally pr otected under the First Amendment unless it had been printed with actual malice. In the same term as Sullivan, the Court reheard argument in a criminal defamation case lingering from the 1963 Term, Garrison v. Louisiana.152 In the case, a Louisiana district attorney was criminally prosecuted for statements he made about a group of judges. Applying the standards announced in Sullivan Justice Brennan concluded that the constitutional requirement of actual malice stretched to crimin al prosecutions for libel as well.153 Noting that Garrisons comments were directed toward th e judges suitability for service, Brennan noted that the speech was just the type protected by the cen tral meaning of the First Amendment: The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, th eir servants. To this end, anything which might 150 Id. at 274. Although the Sedition Act was never tested in th is Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See also Brennan, supra note 142, at 16. The Court did not simply, in the face of an awkward history, definitively put to rest the status of the Se dition Act. More important, it found in the controversy over seditious libel the clue to the centr al meaning of the First Amendment. Id. 151 Brennan, supra note 142, at 16. 152 379 U.S. at 64. 153 Id. at 77. Applying the principles of the New York Times case, we hold that the Louisiana statute, as authoritatively interpreted by the Supreme Court of Louisiana, incorporates constitutionally invalid standards in the context of criticism of the official conduct of public officials. Id.
120 touch on an officials fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also aff ect the officials private character.154 Invoking the standard established in Sullivan as well as the self-governance theory the Court extended protection from criminal prosecution to speakers whose defamatory criticism of public officials was made without actual malice. Brennans belief in the importance of free e xpression as a component of self-governance would re-appear in the Courts wr itings 10 years later as part of a dissent written by Justices Louis Powell, John Marshall and Brennan.155 The three justices dissented from the Courts opinion in Saxbe v. Washington Post Co. in which the majority held the First Amendment did not require prisons to allow members of the medi a to interview specific prisoners in a face-toface setting.156 In their dissent, the justices asserted that members of the press have become an essential component of self-governance, gatheri ng the information necessary for the public to make informed decisions.157 Thus, allowing members of the media to interview prisoners provides members of the public with information they could not obtain themselves, but which is necessary to evaluating the way in which we govern ourselves. An informed public depends on accurate and effective reporting by the news medi a. No individual can obtain for himself the information needed for the intelligent di scharge of his political responsibilities.158 154 Id. at 77. 155 See Saxbe 417 U.S. at 843 (holding member s of the press do not have a Firs t Amendment right to face-to-face interviews with specific prison inmates). 156 Id. at 862. 157 Id. at 862. For most citizens the prop ect [sic] of personal familiarity w ith newsworthy events is hopelessly unrealistic. In seeking out the news the press therefore acts as an agent of the public at large. It is the means by which the people receive that free flow of information and ideas essential to intelligent sel f-government. By enabling the public to assert meaningful control over th e political process, the press performs a crucial function in effecting the societal purpos e of the First Amendment. Id. 158 Id.
121 In Saxbe the dissenting justices fo cus on the First Amendment ri ght to receive information as a part of their use of self -governance theory, an argument that would continue to develop in the Courts discussion of self-gove rnance as a justification for fr ee expression. The justices cited the line of cases in which the Court r ecognized the right to receive information159 as well as Meiklejohns writings160 to support their assertion.161 Self-governance, then, would begin to play a role in the Courts other speech jurispruden ce. In particular, just ices even invoked selfgovernance in cases where it could be said consumers needed information to make informed health, safety and welfare decisions expression on social issues that could be likened to core political speech.162 Although Meiklejohns writings invoked self-gover nance to protect core political speech using the First Amendment, Justice Harry Blackmun found the justification qu ite useful in one of the Courts earliest commercial speech cases. In Virginia Board of Pharmacy v. Virginia Citizens Consumer Council ,163 the Court struck down a Virginia st atute that prohibited advertising the prices of prescription medicines. In ruling that the state law violated the First Amendments free expression protections, Justice Bl ackmun likened a citizens ability to make informed consumer choices to their decision to make informed political choices: As to the particular consumers interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day's most urgent 159 See, e.g., Mandel 408 U.S. at 762; Red Lion, 395 U.S. at 390; Lamont, 381 U.S. at 301; Martin v. City of Struthers, 319 U.S. 141, 143 (1943). 160 MEIKLEJOHN, supra note 133, at 26. Just so far as, at any poin t, the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or di sbelief or criticism which is relevant to that issue, just so far the result must be ill-considered, ill-balanced pla nning for the general good. It is that mutilation of the thinking process of the community against which the First Amendment to the Constitution is directed. The principle of the freedom of speech springs from the necessities of the program of self-government. Id. 161 Saxbe, 417 U.S. at 863. 162 Virginia Pharm. Bd. 425 U.S., at 748. 163 Id.
122 political debate. Those whom the suppres sion of prescription dr ug price information hits the hardest are th e poor, the sick, and particularly the aged. A disproportionate amount of their income tends to be sp ent on prescription drugs; yet they are the least able to learn, by shopping from pharmacist to pharmacist, wher e their scarce dollars are best spent. When drug prices vary as strikingly as they do, information as to who is charging what becomes more than a convenience. It could m ean the alleviation of physical pain or the enjoyment of basic necessities.164 Blackmun noted that a consumers choice affects the fashion in which the market operates and the industry is regulated. Therefore, even if the First Amendment were thought to be primarily an instrument to enlighten public decision-making in a democracy, we could not say that the free flow of information does not serve that goal.165 Knowing Meiklejohns writings would not support the protection of commercial speech fo r commerces sake, Blackmun invoked his larger reference to the social issues surrounding the advertising of prescrip tion prices by relying on economic and health, safety and welfare argumen ts to find First Amendment protection for the advertisement of prescription prices.166 In 1980, Justice Brennan again invoked Meik lejohns self-governance theory in his concurring opinion in Richmond Newspapers v. Virginia .167 Writing for himself and Justice Marshall, Brennan reasoned that the First Amen dment was not merely protecting free expression for the sake of expression, but in stead that the First Amendment itse lf played a structural role in ensuring our government represented th e views and interests of the people.168 Observing this, he continues by quoting a popular pass age from the Courts decision in Sullivan that debate on 164 Id. at 763-764. 165 Id. at 764. 166 Id. 167 448 U.S. 555, 586 (1980) (holding that unless a judge make specific findings of fact that an overriding interest exists, criminal trials must be open to the public). 168 Id. The structural model links the First Amendment to that process of communication necessary for a democracy to survive, and thus entails solicitude not only for communication itself, but also for the indispensable conditions of meaningful communication. Id. at 587-588.
123 public issues should be uninhi bited, robust, and wide-open.169 However, ancillary to the commitment to public discussion is the belief that such discourse occur between informed citizens.170 Allowing public participation in criminal trials provides that opportunity, Brennan argued, allowing citizens to obs erve government in action. After Justice Brennan left the Court, Meik lejohns self-governance theory was adopted by a new advocate in Justice Stephen Breyer Writing 10 years after Brennans Richmond Newspapers concurrence, Breyer and Justic e Ruth Bader Ginsburg reiterated the Courts commitment to public participation and open public discussion in their concurrence in Nixon v. Shrink Missouri Government PAC .171 In arguing that the statute furthered self-governance under the First Amendment, Breyer wrote that limiti ng campaign contributions protected the integrity of the election and a representative government.172 Doing so, Breyer argued, actually encourages public participation by re quiring candidates to seek a broader base of public support. This, in turn, means more voices will likely be introdu ced into the electoral process, furthering Meiklejohns goal of informed self-governance.173 Although self-governance has not been cited in a Supreme Court First Amendment case since Nixon Justice Breyer has returned to Meiklejohns premise in other areas. In 2004, Breyer cited Meiklejohn for the proposition that an informed public plays an important ro le in a participatory government in Vieth v. Jubelirer 169 Id. at 587 ( quoting Sullivan 376 U.S. at 274). 170 Id. 171 528 U.S. 377, 401 (2000) (holding that a Missouri statute limiting campaign contributions for various state offices was sufficiently tailored to serve its purposes and survived First Amendment scrutiny). 172 Id. Moreover, by limiting the size of the largest contributions, such restrictions aim to democratize the influence that money itself may bring to bear upon the electoral process. Id. 173 Id.
124 where he dissented from the Courts decision th at a Pennsylvania claim of gerrymandering was a nonjusticiable political question.174 Vincent Blasi and the Checking Value Nearly as old as the roots of selfgovernance and marketplace theory, the watchdog theory as a justification for freedom of expression can be traced back to th e writings of Colonial America. Popularized as the checking value of the First Amendment by legal scholar Vincent Blasi, this theory holds that free expression serves as a counterwei ght to an oppressive government.175 In his article, Blasi discusses the hist orical underpinning of the checking value as a justification for free expression. In addition, he outlines how the checking value promotes the traditional First Amendment values of individual autonomy, diversity and self-government. Finally, he applies the checking va lue as a First Amendment justification in three key contexts: defamation, newsgathering and access to the medi a. In conclusion, Blasi contends that the checking value has both the historic al legitimacy and analytic for titude to be considered a key component of First Amendment theory. Much like the marketplace of ideas, the wa tchdog theory, or checking value, can be traced back to the English philosophers. The no tion that the people must have some power over the government emerges as a central characteristic of John Lockes Second Treatise on Civil Government.176 There, Locke wrote that it is the right of citizens to overthrow a government that misuses the public trust.177 Thus, the watchdog rule of the public was born in the late 1600s and would eventually be called upon by other great thinkers to extend to the press as well. 174 See 541 U.S. 267, 356 (2004) (Breyer, J., dissenting). 175 See Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. BAR FOUND. RES. J. 521. 176 See JOHN LOCKE, SECOND TREATISE ON GOVERNMENT, ch. 13-19 (C.B. Macpherson ed. 1980). 177 Id.
125 Many of these ideas traversed the Atlantic Ocean with the American colonists who were looking to form a colonial government. As the framers were contemplating the protections necessary in a constitution, many drew from th e writings of Cato, John Wilkes, Father of Candor and Junius,178 which evoked the watchdog themes prominent in Lockes writings. Wilkes, for example, writes: The liberty of the press is th e birth-right of a Briton, and is justly esteemed the firmest bulwark of the liberties of this country. A wicked and corrupt administration must naturally dread this appeal to the world; and will be for keep ing all the means of information equally from the prince, parliament and people.179 Cato, too, emphasized freedom of speech as a key to true liberty. In the essay Of Freedom of Speech Cato discusses the checking value in one of its most famous references, saying Freedom of Speech is the great Bulwark of Liberty; they prosper and Die together.180 Father of Candors references to the watchdog concept come in an essay discussing the villainous nature of seditious libel, in which he accepts the notion of punishment for libels attacking private persons but condemns punishment of defamatory speech against public officials.181 The ability to criticize those in power, he s uggested, is required for people to have liberty and freedom.182 Blasi does not view the checking value as th e only relevant First Amendment theory. Along with the role of the press as a watchdog, he asserted the courts should examine other 178 See generally LEVY, supra note 9, at 89-119 (1985). 179 John Wilkes, The North Briton No.1, at 1-2 (June 5, 1762). 180 CATO, OF FREEDOM OF SPEECH, reprinted in LEONARD LEVY, FREEDOM OF THE PRESS FROM ZENGER TO JEFFERSON: EARLY AMERICAN LIBERTARIAN THEORIES 12 (1966). 181 FATHER OF CANDOR, AN ENQUIRY INTO THE DOCTRINE LATELY PROPAGATED CONCERNING LIBELS, WARRANTS, AND THE SEIZURE OF PAPERS, 30-31 (DaCapo Press 1970). 182 Id. at 32. The liberty of exposing and opposing a bad administration by the pen is among the necessary privileges of a free people, and is perhaps the greatest benefit that can be derived from the liberty of the press. Id.
126 theories, including self-governance and the marketplace of ideas, as part of their approach to deciding First Amendment cases: The challenge for the Court in this area [Fir st Amendment theory] is to develop a more comprehensive theory of the speech, assemb ly and press clauses which give adequate expression to those newly implicated values.183 As a part of that comprehensive theory, in wh ich the Court had previ ously turned to selfgovernance and marketplace theory, Blasi suggest ed the addition of the checking value. The Supreme Court and the Checking Value The Supreme Court does not disc uss the checking value with the same frequency that it mentions the marketplace of ideas or self-governan ce. But the notion that the press must serve as a watchdog on government power can still be found in several of the Court s opinions, albeit not with the fervor envisioned by Blasi. Most recently, the justices have made reference to role of the media as a government watchdog in the context of deciding cases involving numerous other issues. Interestingly, the justices often write with the implication that such a power is presumed on the part of the press. For example, in Leathers v. Medlock,184 Justice Sandra Day OConnor, while writing for the Court to uphold the constitu tionality of Arkansas sales tax as applied to cable television, opines that the tax does not single out the press and does not therefore threaten to hinder the press as a watchdog of government activity. Similarly, in Smith v. Daily Mail, Justice William Rehnquist in his concurrence ma kes a statement presupposing the role of the press as a watchdog It is difficu lt to understand how publication of the youth's name is in any way necessary to performance of the medias watchdog role.185 183 Blasi, supra note 175, at 525. 184 See 499 U.S. 439, 447 (1991). 185 See 443 U.S. 97, 109 (1979).
127 Language presupposing the press role as a government watchdog can lik ely be attributed to strong language in earlier landmark First Amendment cases: Branzburg v. Hayes and New York Times v. United States These two cases, decided in back-t o-back terms, evidenced several justices views that the press serves as a gove rnment watchdog. In his 1972 landmark dissent in Branzburg v. Hayes,186 Justice Potter Stewart made abundan tly clear his belief in the watchdog theory as a justification for free expression. While writing in favor of a First Amendment right for reporters to protect their conf idential sources, Stewart reasoned: As private and public aggregations of pow er burgeon in size and the pressures for conformity necessarily mount, there is obvious ly a continuing need for an independent press to disseminate a robust variety of information and opinion through reportage, investigation, and criticism, if we are to pres erve our constitutional tradition of maximizing freedom of choice by encouraging diversity of expression.187 Stewart goes further in his dissent, noting that the Courts decision will largely hamper the ability of journalists to serv e a public watchdog by drying up sour ces within the government who may provide valuable information on abuses of power: A public-spirited person inside government, who is not implicated in any crime, will now be fearful of revealing corruption or othe r governmental wrongdoing, because he will now know he can subsequently be identified by use of compulsory process. The potential source must, therefore, choose between riski ng exposure by giving information or avoiding the risk by remaining silent.188 Only one term earlier in 1971, Justice Hugo Bl ack emphasized his belief in the watchdog theory as a part of his conc urrence in the Supreme Courts decision in the Pentagon Papers case.189 In that case, the U.S. Supreme Court held that the government had failed to meet the heavy burden necessary to justify enjoining the New York Times from publishing classified 186 See 408 U.S. 665 (1972) (holding that the First Amendment does not protect reporters from judicial subpoenas requiring the disclosure of the identity of a confidential source). 187 See 408 U.S. 665, 727 (1972) (Stewart, J., dissenting). 188 Id. at 731. 189 See New York Times v. U.S., 403 U.S. 733 (1971).
128 historical documents about the Vietnam War. In his concurre nce, Black wrote that the Governments power to censor the press was abo lished so that the press would remain forever free to censure the Government. The press was prot ected so that it could bare the secrets of government and inform the people.190 In discussing the role of the press, Black ties the newspapers action back to those intended by the framers of the Constitution, thus implying that the notion of such a checking pow er dates back to the constr uction of the First Amendment.191 Thomas Emersons Self-Fulfillment Theory Both the marketplace of ideas and the watchdog concept justify free expression by focusing on the larger societal benefits of free expression. The marketplace rationale focuses on the collective benefits of the id eas entering into the market a nd Blasis checking value espouses the benefits of allowing the press to serve as a check on government author ity through the use of free expression. In contrast, self-fulfillment th eory relies upon a more individualized focus to justify free expression. Self-fulfillment derives from the benefits of free expression for society to the benefits of free expression for the i ndividual engaged in such expression. First Amendment scholar Thomas I. Emers on posited that self-fulfillment, like the checking value, is not the sole rationale for free expression.192 Self-fulfillment, he notes, works in conjunction with three other ra tionales for free expression.193 Those rationales, as Emerson explains them, include: attainment of truth, participation in decision-making and balance 190 New York Times 403 U.S., at 717 (1971) (Black, J., concurring). 191 Id. at 717. In my view, far from deserving condemnation for their courageous reporting, the New York Times the Washington Post and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do. Id. 192 See Thomas I. Emerson Toward a General Theory of the First Amendment 72 YALE L.J. 877 (1963). 193 Id. at 878.
129 between stability and change.194 Thus, in his general theory of the First Amendment, Emerson accounts for both collective and individua l justifications for free expression. Self-fulfillment, which Emerson listed first in his discussion, focuses solely on the right of the individual. To justify self -fulfillment, Emerson noted that man has the unique capacity to reason, which includes the ability to use his mind, think and communicate.195 Through these powers, Emerson asserts that it is only natural th at man attempts to find meaning and understand his role in the world. Thus, Emerson described self-fulfillment theory as justifying freedom of expression based on the notion that such expres sion is necessary for proper development and character.196 In exercising the right to speak, Emerson a sserted people will form their own set of values and beliefs. Freedom of e xpression, he explained, leads to the realization that a persons mind must be free to develop and search for the truth.197 Thus, limiting a persons ability to explore ideas and uncover truths denigrates a persons dignity.198 In addition to the ability to reason, Emerson turned to the role of an indivi dual in society as a second anchor for his selffulfillment theory. Because man is a social creature, Emerson posited, it is only natural that he attempts to construct shared meanings and common culture with others in his society.199 To do so, he must communicate his set of values and be liefs. As a result of this justification, Emerson 194 Id. at 879-886. 195 Id. at 879. 196 See THOMAS I. EMERSON. THE SYSTEM OF FREEDOM OF EXPRESSION 6 (1971). 197 Id. The proper end of man is the realization of his character and potentialities as a human being. Id. 198 Id. To cit off his search for truth, or his expression of it, is to elevate society and the state to a despotic command over him and to place him under the arbitrary control of others. Id. 199 See Emerson supra note 192, at 880.
130 asserts that freedom of expression, while not th e sole or sufficient end of society, is a good in itself, or at least an essen tial element in a good society.200 The Supreme Court and Self-Fulfillment The Supreme Court has mentioned self-fulfillm ent theory on a limited basis in its First Amendment jurisprudence. The first disc ussion came in the majority opinion in Police Department of City of Chicago v. Moseley .201 In deciding a 1972 case involving a picketing ordinance, Justice John Marshall ex amined the value of an individua ls ability to express himself in society. While noting that content-based rest rictions on individual sp eech are particularly pernicious, Marshall reasoned: To permit the continued building of our politics and cu lture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control.202 The Court went on to strike down the city ordi nance, which prohibited all picketing within 150 feet of a school, except peaceful pick eting of schools in a labor dispute.203 Deciding the ordinance was content-based, the Court ruled that it made an impermissible distinction between types of peaceful demonstrations.204 Six years later, Justice Byr on White further enunciated the Moseley view of the selffulfillment theory as serving a distinct role in First Amendment theory. In his dissent in First 200 Id 201 See 408 U.S. 92 (1972) (holding unconstitutional a city or dinance prohibiting all picketing within 150 feet of a school, except peaceful picketing of any school involved in a labor dispute because it makes an impermissible distinction between types of peaceful demonstrations). 202 Id. at 96. 203 Id. at 102. 204 Id.
131 National Bank of Boston v. Bellotti ,205 White argued against prot ection for corporate speech, reasoning that the very self-fulfillment used to provide protection for an individual speaker cut against providing protection for corporate speakers. In his dissent, White writes: Indeed, what some have considered to be th e principal function of the First Amendment, the use of communication as a means of self-expression, self-r ealization, and selffulfillment, is not at all furthered by corporat e speech. It is clear that the communications of profit-making corporations are not an inte gral part of the development of ideas, of mental exploration and of the affirmation of se lf. They do not represent a manifestation of individual freedom or choice.206 Individuals, under self-fulfillment theory, are prot ected speakers, White argues, because of their desire to create common understandings to advance their own views on social or political issues.207 Conclusion First Amendment theory plays a large role in protecting expressive activities, including those conducted over the Internet. In some regard, the Internet ha s helped advance a variety of justifications for free expression by proving a mass medium that is accessible to a large percentage of the population. As courts begin to address Internet First Amendment cases, it is likely they will look to First Amendment theory in much the same way they have in First Amendment cases prior to the deve lopment of the Internet. In t hose cases, the courts have not relied solely on one First Amendment theory to pr otect speech but instead have turned to several theories, including marketplace of ideas, checking value, self-governance and self-fulfillment. 205 See 435 U.S. 765 (1978) (holding unconstitutional a state statute that prohibited corporations from making contributions or expenditures to influence the outcome of a referendum vote on questions that dont affect the corporation). 206 First Natl Bank of Boston 435 U.S. at 804-805. 207 Id. at 805. Shareholders in such entities do not share a common set of political or social views, and they certainly have not invested their money for the purpose of advancing political or social causes or in an enterprise engaged in the business of disseminating news and opinion. Id.
132 Drawn from the John Miltons Aeropagitica and John Stuart Mills On Liberty, marketplace of ideas has become the First Am endment theory most relied upon by the U.S. Supreme Court. The theory, as it has developed, essentially posits that in a market of competing ideas, the notions of truth, or their closest appr oximations, shall rise to the surface through a robust exchange of ideas. In 1909, Justice Oliv er Wendell Holmes laid the foundation for the marketplace of ideas theory of free expression in the nations First Amendment jurisprudence in his dissent in a case abou t subversive pamphleteering.208 Since then, the Court has turned to the marketplace of ideas several times, including mentioning it in the landmark Internet case Reno v. ACLU There, the Court observed a dramatic expansi on of this new marketplace of ideas When referring to the Internet.209 The marketplace of ideas justification for free sp eech ties closely to several other theories of free expression, including Al exander Meiklejohns self-gover nance theory, Vincent Blasis checking value and Thomas Emers ons self-fulfillment theory. In their New York Times v. Sullivan and Louisiana v. Garrison, the Supreme Court embraced a vision of the First Amendment drew upon Meiklejohns self-governance theory. In doing so, the justices wrote the central meani ng of the First Amendment is to protect expression aimed at furthering a self-govern ing society. Emphasizing participation in governance, Meiklejohn asserted in his book Free Speech and Its Relati on to Self-Government that freedom of speech requires not that every pe rson be allowed to speak, but instead that every point of view is allowed to be spoken. Since Sullivan, numerous justices have cited Meiklejohns 208 See generally Abrams 205 U.S., at 616 (Holmes, J., dissenting). 209 Reno, 521 U.S. at 885.
133 writings in their opinions to furt her assert his self-gove rnance theory to prot ect free expression in cases involving political speech, social speech and even commercial speech. Although it has not received the same recogn ition as marketplace of ideas or selfgovernance, Blasis checking value theory, whic h holds that free expr ession serves as a counterweight to an oppressive government, has been mentioned by the Court in First Amendment cases. Advocated by Justice Black and Justice Stewart, the notion that the media serves as the publics watchdog by checking on th e government, has not been fully explored by the Court. Emersons self-fulfillment theory has also played a limited role in the Courts First Amendment jurisprudence. In Police Department of City of Chicago v. Moseley, Justice Marshall enunciated Emersons theory, writing that expre ssion promotes the development of politics and culture while allow speakers to grow as individuals. But, self-fulfillment theory has also been used by jurists, including Justice White in First National Bank of Boston to assert that corporate speakers should not have the same levels of Fi rst Amendment protection as individuals because they do not derive this self-f ulfillment from free expression. Given the broad theoretical base on which th e Supreme Court has established its First Amendment jurisprudence, it will almost certainly continue to rely on these theories in any future Internet cases. Reno v. ACLU provides one example of the Court already extending these First Amendment theories into its Internet jurisprudence.
134 CHAPTER 4 DEFINING COMMUNITY The concept of community plays an important role in defamation litigation. Courts may use a plaintiffs community to make several determ inations critical to th e litigation. First, the evaluation of the plaintiffs community may be used to determine whether a statement actually contained a defamatory communication.1 Second, courts may look to the plaintiffs community to determine his status as a plaintiff, thereby de ciding what level of fault must be proven before the plaintiff can succe ed in the litigation.2 For example, if a person is determined to be a public figure based on his status in the community, sh e will be required to prove actual malice to succeed in her defamation claim. Finally, courts may again turn to the definition of community to determine if the plaintiffs reputation was inju red in a given community the courts are willing to recognize. In any sense, the courts must de termine the make-up of the plaintiffs community before such important decisions can be made. This chapter looks at what factors the courts have used to define community in both traditional print and broadcast defamation cases as well as online defamation cases. The Courts Look at Community: Print and Broadcast Defamation Although the U.S. Supreme Court has addresse d the definition of community on several occasions, its jurisprudence provides overarching them es, instead of bright-line rules, to serve as guidance for the lower federal courts. The no tions of community discussed by the Supreme Court are merely a starting point from which the lo wer courts have begun their analyses. In their opinions, the courts have mentioned community in a variety of contexts, incl uding as part of the 1 See, e.g. Gooden v. Town of Clarkton, N.C., 1990 WL 21198 (4th Cir. 1990). 2 See, e.g. Gertz v. Welch, 418 U.S. 323, 351-352 (1974).
135 determination of defamatory meaning, as a facet of the test to determine plaintiff status, and as part of the evaluation of harm. U.S. Supreme Court The U.S. Supreme Courts discussion of commun ity in defamation actions dates back to an era before defamation law had been constitutionalized by the landmark Times v. Sullivan3 decision. Justice Oliver Wendell Holmes, writing for the Court in 1909 in Peck v. Tribune Co. ,4 addressed the notion of community as part of th e Courts determination of defamatory meaning. In the case, an Illinois nurse sued over a whisky advertisement appearing in the Chicago Sunday Tribune that used her likeness to endorse the alcohol.5 The Supreme Court, in deciding the case, had to determine whether the statement was indeed libelous. As part of this analysis, Justice Holmes discussed the role of community in the determination of defamatory meaning. Justice Holmes description of community in Peck used language that would continue to be used in numerous cases to come. In the opinion, he wrote If the advertisement obviously would hurt the plaintiff in the estimation of an impor tant and respectable part of the community, liability is not a question of a majority vote.6 Justice Holmes further clarified this language, writing that a defamatory statement n eed not be known by all the world.7 As an example, he used the defamation of a doctor, who could bring suit for a defamatory statement that affected his reputation in the eyes of the medical comm unity alone, even though others may not view him 3 See Times v. Sullivan, 376 U.S. 254, 264 (1964). 4 214 U.S. 185 (1909) (reversing a directed verdict for a defamation). 5 Id. at 188. 6 Id. at 190. 7 Id. at 190.
136 with contempt.8 In discussing the number of people in a community that would constitute an important and respectable part, Holmes wrot e that a defamation known by a large number that causes an appreciable fract ion of that community to ch ange their views is enough for liability.9 This language, discussing the important and respectable part of a community,10 would continue to color courts opinions about what statements could be held defamatory. In contrast to Justice Holmes descripti on on community, a second prominent notion of community based on the Restatement of Torts would eventually app ear in Supreme Court jurisprudence. Four decades late r, the Supreme Court heard two c onsolidated cases in which the petitioners, the Joint Anti-Fascist Refugee Com mittee and others, sought an injunction to prevent the U.S. Attorney General from producing a li st of organizations deemed to be communist.11 Writing for the Court, Justice Harold Burt on opined that designa tion as a communist organization in public records could be harmful to an organizations reputation.12 Further, he wrote that such a label could end an organizations ability to opera te and harm its reputations in the eyes of its community.13 Finally, Justice Burton turned to the Restatement of Torts, which defined defamatory communication as one that tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or 8 Id. Thus, if a doctor were represented as advertising, the fact that it would affect his standing with other of his profession might make the representation actionable, although advertising is not reputed dishonest, and even seems to be regarded by many with pride. Id. 9 Id. 10 Id. 11 See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951). 12 Id. at 139. 13 Id. at 139. Their effect is to cripple the functioning and damage the reputation of those organizations in their respective communities and in the nation. Id.
137 dealing with him.14 The Restatement language, too, would be used frequently to describe community in the context of defamation litigation. The next major discussion of community among members of the Supreme Court came 23 years later in an opinion penned by Justice Lewis Powell in Gertz v. Welch. In that case, the discussion of community t ook place as the Court attempted to determine the status of attorney Elmer Gertz.15 Toward the end of the opinion, Justice Powell addressed whet her Gertz would be properly classified as a public fi gure and subjected to a fault standard greater than negligence.16 To make that determination, the Court noted that Gertz had: long been active in community and professional affa irs. He has served as an officer of local civic groups and of various professional orga nizations, and he has published several books and articles on legal subjects.17 Despite these activities, the Court reas oned that he remained a private person.18 The court noted that none of the potential jurors kn ew of Gertz and that no proof had been offered to suggest that others in the local community would have thought of him as a public person.19 In its discussion of Gertz prominence in his comm unity, the Court examined his role in Chicago despite the fact that the defamatory statement was publishe d in a magazine of national circulation.20 Two years after Gertz, the Supreme Court would again examine community as it pertained to determining a plai ntiffs status. In Time v. Firestone, the Supreme Court had to determine whether Mary Alice Firestone, ex-wife of the son of the pr ominent tire manufacturer, had 14 See RESTATEMENT OF TORTS 559 (1938). 15 Gertz, 418 U.S. at 351-352. 16 Id. 17 Id. at 351. 18 Id. 19 Id. at 352. 20 Id. at 327, 351-352.
138 achieved public figure status for the purpose of her defamation suit against Time magazine.21 Justice Rehnquist, writing for th e Court, noted that although Ms. Firestone might have achieved a role of prominence in Palm Beach societ y, she had no pervasive public role nationally.22 Even holding several press conferences during the divorce proceedings with her husband was not enough to support a finding that Ms. Firestone wa s a public figure, Justice Rehnquist reasoned.23 Once again, the Court noted in a defamation cas e involving a national pub lication that even prominence in a local community would not be e nough to consider the plaintiff a public figure. Writing for the Court as chief justice, W illiam Rehnquist also mentioned community in Milkovich v. Lorain Journal Co.24 In the case, which pitted a hi gh school wrestling coach against a local Ohio newspaper, the Court was asked to determine whether the Constitution protected statements of opinion, insulating their speakers from liability for defamation. In discussing the reasoning behind his decision that st atements of opinion that cont ain no provably false assertions of fact are protected speec h, Justice Rehnquist discussed th e role of community in the development of defamation law.25 At common law, Rehnquist note d, a plaintiff need only prove that a statement was defamatory, meaning that it was false and would subject him to hatred, contempt, or ridicule.26 Thus, it seemed under common law that no regard was given to whether the statement was fact or opinion. However, th e constitutionalization of defamation law with 21 Time v. Firestone, 424 U.S. 448, 453-454 (1976). 22 Id. at 453. 23 Id. at 455. 24 See Milkovich v. Lorain Journal Co. 497 U.S. 1 (1990) (holding that statements of opinion that contain no provably false assertions of fact are not actionable in defamation). 25 Id. at 12-13. 26 Id. at 12-13 ( quoting RESTATEMENT OF TORTS 558 (1938)).
139 Times v. Sullivan and it progeny increased the requirements that plainti ffs must plead and prove to succeed in a defamation lawsuit. Even under the Restatement (Second) of Torts which was drafted in 1977, Rehnquist noted no distinction was made rega rding opinion statements.27 The Restatement did, however, update the language used to address community and the notion of what constitutes a defamatory statement to say: [E]xpression was sufficiently derogatory of anot her as to cause harm to his reputation, so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.28 Later in a footnote in the Milkovich decision, Rehnquist rejected the notion that defamatory meaning may be different in a sma ll community versus a larger one.29 Rejecting the assertion by amici Dow Jones that the Court should observe the statement in light of its small town nature, Rehnquist adopted another framework in which to define the community. The statement, he implied through his analysis, must be considered in light of the entire Cleveland metro area given that the involved high schools are a part of the Cleveland standard consolidated statistical area.30 Like the broadened language of the Restatement (Second) of Torts Rehnquists footnote in Milkovich implied an understanding of the changing nature of modern-day communities. Federal Appellate Courts In the seven decades following the U.S. Supreme Courts 1909 decision in Peck the federal appellate courts would hear few cases di scussing community. The first case to deal with 27 Id. The expression of opinion was also actionable in a suit for defamation, despite the normal requirement that the communication be false as well as defamatory.... This po sition was maintained even though the truth or falsity of an opinion as distinguished from a statement of fact is not a matter that can be objectively determined and truth is a complete defense to a suit for defamation. RESTATEMENT (SECOND) OF TORTS 566, cmt. a (1977). 28 See RESTATEMENT (SECOND) OF TORTS 566 (1977). 29 Milkovich, 497 U.S. at 22, n.9. 30 Id.
140 the subject arose in 1926 in the Third Circuit31 and the next case 40 y ears later in the D.C. Circuit.32 Beginning in the 1980s and continuing into the 2006-2007 term, the federal appellate courts have decided a flurry of cases in wh ich they have had to address the meaning of community. Throughout these opinions, th e courts often started from the Peck discussion of the size of the community. The Third Circuit was the first federal appell ate court to address th e issue of community size in its 1926 decision in Francis v. People of Virgin Islands .33 In Francis, the court heard an appeal from a criminal libel and contempt of c ourt case brought against th e editor of one of the island newspapers who had writ ten about a police official.34 In discussing whether the trial judge had erred in finding Francis guilty of criminal libel, the appellat e court found the evidence as to the identification of the plaintiff and the defamatory nature of the statement to be weak.35 As a part of its opinion, th e court points out that although the community was small (a town of 10,000 people), there was no evidence to support the cl aim that the public perceived injury to the reputation of the police official because member s of the public did not connect the purportedly defamatory statements as being published about the police official.36 Even though the Francis court made no specific findings about community, two findings can be inferred from its opinion. First, the court examined the source of the st atements as a gauge for how to begin defining 31 See Francis v. People of Virgin Islands, 11 F.2d 860 (3d. Cir. 1926). 32 See Afro-American Publg Co. v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966). 33 Francis, 11 F.2d at 860. 34 Id. at 862. 35 Id. In this instance the article accuses no one by name; nor does it cont ain anything by which to identify the person to whom it refers. Though the community is small (10,000) and the police force correspondingly small, there was nothing to show that the public thought the publication was directed to Mathias until he went before the Government Attorney and saying, I am the person, published the fact himself. Id. 36 Id.
141 community. Second, after identifying the newspaper as the publis hing entity, the court examined the newspapers audience a town of 10,000 people to define community in the context of the libel case. Four decades after the Third Circuits Francis decision, the D.C. Circuit was called upon in 1966 to address the is sue of community. In Afro-American Publishing Co. v. Jaffe,37 a white newspaper vendor sued the publisher of a black newspaper for defamation after the newspaper published an article implying the vendor was a bigot because he stopped selling the black newspaper. The court addressed community both in terms of defamatory meaning and injury to reputation, citing both cases and legal scholars as support for its position. The opinion seemed to indicate that the court may allow the plaintiff to assert either a geographic community based on the publications location or a professional community based on the plaintiffs occupation.38 Further, the court noted, the plai ntiff was not required to prove that everyone in the asserted community holds the plaintiff in lower regard.39 As justification for the view that not every member of the community hold the plaintiff in lower regard, the court relied on the language from the Restatement, which said a defamatory st atement was one that tends to lower plaintiff in the estimation of a substant ial, respectable grou p, though they are a minority of the total community or plaintiff's associates.40 The court noted, when adopting this standard, that it was a broad one, more easily proven than one requiring a plaintiff to show the statement caused him contempt, ridicule or di sgrace in his community.41 37 Jaffe 366 F.2d at 649. 38 Id. at 658. Of course the plaintiff need not show tende ncy to prejudice him in the eyes of everyone in the community or all his associates. Id. at 658, n. 10. 39 Id. at 659, n. 10. 40 Id. 41 Id. at 659.
142 According to the Jaffe court, the article must be taken as a whole as it would be read by the average reader in the publications target community, not by the community as a whole.42 Applying this standard, the court concluded that the average read er in the publications target community what the court referred to as the a verage reader in the community concerned could have believed as a result of the publication that the plaintiff was a racially biased bigot.43 The Francis standard, it seemed, would have looked at the entire geographic community instead of the publications target community, wh ich could be considerably smaller. The D.C. Circuit again addressed the notion of community 30 years later when it decided Tavoulareas v. Piro which pitted an oil company president and his son against a reporter and the Washington Post in a defamation action.44 Returning to its 1966 decision in Jaffe the court utilized similar reasoning to evaluate whether th e statements made in the newspaper contained a defamatory meaning within the community.45 To determine whether the communication was defamatory, the statements must be read and co nstrued in the sense in which the readers to whom it is addressed would ordinarily understand it.46 Although both the majority and the dissent agree on how to determine defamatory meaning within the co mmunity, the dissenting opinion more clearly discusses the process. In making its determination, the court relied on the reach of the publication to determine the community.47 Although the court initially referred to how the general public interprete d the statements, it later talked about how the Posts readers 42 Id. at 659. What counts is not the painstaking parsing of a scholar in his study, but how the newspaper article is viewed through the eyes of a reader of average interest. 43 Id. 44 817 F.2d 762 (D.C. Cir. 1987). 45 Id. at 780. 46 Id. at 817 ( quoting Wash. Post Co. v. Chaloner, 205 U.S. 290, 293 (1919). 47 Id. at 819.
143 may have believed the statements.48 Thus, using readership as a proxy for community, the court concluded that statements were capable of defa matory meaning within the community. However, the plaintiffs lost the case on other grounds.49 Many of the federal appellate courts have followed the lead of the D.C. Circuit to determine community in defamation actions. On e year later in 1988, the Sixth Circuit would adopt the D.C. Circuits position in Jaffe as well, taking into cons ideration the publications community to determine defamatory meaning.50 In 1990, the Fourth Circuit rejected a plaintiffs defamation claim, noting that within his geograp hic community, the town of Clarkton, N.C., it was well-known that he was homosexual.51 The court found that the information was already known within his community: [The defendant] offered testimony, largely uncont radicted, that plaintif f's reputation in the Clarkton community was that he was a homos exual. This testimony by several witnesses [was] to the effect that it was common knowledge that plaintiff was a homosexual.52 Because it was known within the community in which he resided that he was a homosexual, the statements could not injure his re putation in that geographic area.53 From 1966 until the 1990s, the geographic approach using the community within which the purportedly defamatory statements were distributed was the majo rity approach to defining the boundaries of community. 48 Id. at 819. 49 The court found the plaintiff, a public figure, could not make the requisite showing of actual malice. Id. at 797798. 50 See Connaughton v. Harte Hanks Communication, 842 F.2d 825, 840 (6th Cir. 1988). 51 See Gooden 1990 WL 29198. 52 Id. at *4. 53 Id. at 5. Since the district court f ound evidence, largely uncontradicted, that Gooden had a reputation in the community for being a homosexual, the record does not support a cause of action for defamation. Id.
144 The geographic method worked well for courts when publication was contained within one geographic area. However, as communication began to cross geographic boundaries more frequently, courts began to de velop more flexible approaches to determining community. In 1994, the Seventh Circuit faced a situation in which defamatory statements had been simultaneously published in three stat es Illinois, Indiana and Iowa.54 The case, involving a union official who sued the union president/ business manager for defamation, required the selection of community as a part of the courts choice-of-law decision.55 The plaintiff, a union official, requested that the community be Indi ana, where he lived and worked, alleging his reputation was most severely injured in that location.56 The defendant, a union president and business manager, desired Illinois to be the co mmunity, citing the fact that the allegedly defamatory communications were written, printed and distributed from the Illinois offices of Local 150 in Countryside.57 In selecting Indiana substantiv e law to control the defamation action, the court focused on the nature of defamation as being a tort designed to remedy injury to reputation.58 As such, the court ruled that the releva nt community was in Indiana because it was not the mere publication of the articles that damaged the plaintiffs reputation; it was their publication in Indiana th at caused such injury.59 The Seventh Circuit re fined the geographic test 54 See Jean v. Dugan, 20 F.3d 255, 261 (7th Cir. 1994). Among the allegations in the case, the plaintiff claimed Dugan told union members that Jean sided with a contract or over a member and even pl aintiff's wife is a witness for a contractor and told union member s that Jean had made a deal and si ded with a contractor to deprive a member of benefits. Id. at 260. 55 Id. at 261. The court had to decide between applying the substantive law of Illinois or Indiana. The substantive law of Iowa was not considered because neither the plaintiff nor the defend ant has significant contacts in Iowa. Id. 56 Id. 57 Id. 58 Id. at 261-262. We think it clear that the place where the conduct causing the injury occurred is the most significant factor and that it favors our application of Indiana law. Id. at 261. 59 Id. at 262.
145 used by courts in earlier cases to look not singu larly at the location of publication, but at where the publications effect on reputa tion might be most greatly felt. In 2001, the Third Circuit dealt with a simila r choice-of-law issue involving a defamation lawsuit between a Pennsylvania attorney, an Indian a client and the clients Illinois attorneys in Remick v. Manfredy .60 The attorney sued over a defamatory letter he claime d was both faxed to his office and distributed by the defendants to others in the professional boxing community, whom the plaintiff often represented.61 In the case, the attorney claimed that his home state, Pennsylvania, was the professional community and that proper jurisdiction lie there.62 The Remick court found that the letters, written outside of Pennsylva nia, could have caused the plaintiff harm in Pennsylvania, where most of his professional activity was centered.63 However, the court found that because the recipients of the le tters (other than the plaintiff and two members of his staff) were located outside Pennsyl vania, it was not just to require the defendants to defend themselves in Pennsylvania, because there was not publica tion necessary for the defamation action to stand and thus no actual in jury to his reputation in his professional community in Pennsylvania.64 Thus, while the Remick court was willing to accept Pennsylvania as the plaintiffs professional community for the defamation claim, his claim failed to establish 60 See Remick v. Manfredy, 238 F.3d 248 (3rd Cir. 2001). 61 Id. at 257-258. The second letter, dated September 11, 1998, was sent by Klaus to Remick and reiterated Manfredy's statements in the March 2nd letter that Remi ck was fired for inadequately representing Manfredy and urged him to stop insist[ing] on attempting to extort money. Id. at 258. 62 Id. 63 Id. Defamation is an intentional tort and, because Remick's professional activities are centered in Pennsylvania and the allegedly defamatory letters question Remick's pr ofessional ability, Remick may reasonably contend that he suffered the brunt of the harm in Pennsylvania. Id. 64 Id. at 259. According to Remick, the allegedly defama tory letters and the charges therein were published throughout the boxing community, not just in Philadelphia. Significantly, Remick has not asserted that Pennsylvania has a unique relationship with the boxing industry Even if the letter itself, other than merely the charges in the letter as the complaint alleges, were distributed or shared with other persons in the professional boxing community, such persons were apparently located throughout the country. Id.
146 adequate publication from which harm to reput ation in that community could occur. In its opinion, the Third Circuit seems to be recognizing that a plaintiff s reputation can be injured in a community other than that where the plai ntiff or the publishing entity resides. In 2004, while contemplating the broad reach of allegedly defamatory stories by the media, the Seventh Circuit implied the possibility of a nationwide community.65 After the New York Times and other national media entities published articles saying the federal government was investigating the ties betw een certain charitable organiza tions and terrorist groups, Global Relief Fund sued for defamation.66 The court, in analyzing th e defamation claim, notes the potential impact of stories being printed and aired across the country: GRF has raised a genuine issue of material fact related to damages by showing that donations to the organization diminished afte r the publication of these statements. The articles themselves, which quote persons who ha d donated to GRF or other charities in the past, are replete with evidence that donor s had serious misgivings about the group on hearing of the government probe. GRF has produ ced sufficient evidence of publication; the statements appeared in prominent newspapers and on national television.67 Noting the national interest in the story, the co urt seemed to conclude that a large-scale community may be the appropriate one and that the plaintiffs were likely to succeed in proving harm to reputation.68 The court, however, affirmed the lowe r courts order of summary judgment for the media entities, noting that the allegations were substantially true.69 The Global Relief Fund case is not the only example of a recent decision where the court has contemplated a national community for th e purposes of a defamation action. In 2003, the 65 See Global Relief Fund v. New York Times, 390 F.3d 973 (7th Cir. 2004). 66 Id. at 973-974. 67 Id. at 981-982. 68 Id. at 982. 69 Id. at 989-990. The district court was correct to enter summary judgment in favor of the defendants because their reports about GRF were substantially true. Id. at 990.
147 Eleventh Circuit heard Ford v. Brown,70a case dealing with a defamati on claim arising out of the firing of an attorney. The plaintiff, a British at torney working in Hong Kong who had decided to withdraw from representing his client, sued that client, a Fl orida businessman, for defamation and other torts after the client publicly fired the plaintiff.71 The court, in trying to decide whether litigation was appropriate in Florida, noted that all of the alleged acts occurred in Hong Kong and the requisite inquiry at tria l would mandate an examination of the plaintiffs reputation in Hong Kong before and after the statements.72 In making this observation, the court noted that the plaintiffs practice base was in Hong Kong with clients in Hong Kong.73 As a result, the 11th Circuit reversed the lower courts decision and remanded the case with in structions that Hong Kong be the proper forum in which to try the case.74 Despite dismissing the case, the Florida court recognized the possibi lity that such actions affected the reputation of the plaintiff, who had been doing business throughout Hong Kong. Once ag ain, a federal court appears to have recognized the potential reach of defamatory communications and the breadth of modern-day communities in defamation actions. Federal Trial Courts A majority of the U.S. District Court cases involving a developed di scussion of community arose after 1990. The federa l trial courts in New York were the first to provide some insight into the emerging role of community in defamation litigation. In McNally v. Yarnell ,75 the U.S. 70 319 F.3d 1302 (11th Cir. 2003). 71 Id. at 1305. Plaintiff contends that this conduct, combined with a series of public statements to the Hong Kong press and Hong Kong legal community, constitutes several actionable torts. Id. 72 Id. at 1308. 73 Id. 74 Id. at 1311. 75 764 F. Supp. 838 (S.D.N.Y. 1991).
148 District Court for the Southern District of Ne w York was asked to settle a defamation lawsuit arising out of the sale of st ained glass artwork. The discussi on of community in the case took shape as the court grappled with wh ether the plaintiff was a public figure.76 The court recognized that the general population would not be concerned with the staine d glass artwork of one artist.77 However, the judge noted that to a community of art traders and scholars, the subject would be of great importance. Sim ilarly, the reputations of historians and sellers wo uld be equally valuable in that community.78 In this discussion, the judge implied that the plaintiffs reputations, while not injured in the eyes of the general public could be harmed in their art community.79 In the end, the court granted the museums motion for su mmary judgment and dism issed the plaintiffs defamation claims.80 Even though the court discussed commun ity within the cont ext of plaintiff status, it drew attention to the concept of a sub-community for the purposes of defamation litigation. In 1993, the same year as McNally the U.S. District Court for the Eastern District of New York addressed the definition of community wh en the purported defamation comes in the form of a novel. After the publica tion of Oscar Hijuelos novel The Mambo Kings Play Songs of Love, Gloria Parker, who appears in the novel as a peripheral true-lif e character sued for defamation.81 Parker alleged in her lawsuit that she ha d been subject to ri dicule in both the 76 Id. at 847. 77 Id. 78 Id. 79 Id. Where, however, as here, the statements of Yarnall on the authenticity and value of works attributed to La Farge affect the market for and the tax implications of donating La Farge's works among the segment of the population that trades such works as well as the community of scholars with an in terest in La Farge, such statements are of public import. Id. 80 Id. at 853. 81 Parker v. Hijuelos, 1991 WL 158976 (E.D.N.Y.).
149 entertainment community and the general community.82 In its decision, the court discussed community as it applied to determining wh ether the passages within the novel were defamatory.83 The court then determined after evaluating the passages in the eyes of the average reader that Parker could not have suffered harm in the ey es of the general community: Thus, although a person may suffer some injury to his or her reputation among a particular constituency or localized community, no claim of defamation will lie unless the statements also would appear offensive to a substa ntial portion of the community at large.84 While the McNally court appeared ready to recognize sub-communities for the purpose of defamation law, only two months late r in a neighboring jurisdiction, the Parker court was not willing to make such a finding, adding to the state of flux in defamation law. The U.S. District Court for the District of Maryland also addressed the issue of subcommunities when it was asked to decide a case involving an insurance company, National Life, who sued Phillips Publishi ng, the publisher of an investment newsletter.85 The issue arose when the court had to determine if the insurance co mpany would be considered a public figure. The court, in its analysis, examined whether th e company was a prominent member of the community, which the court defined as a limite d audience who would come into contact with the alleged defamatory statements: Here, [p]laintiff's community is defined with respect to the specialized audience familiar with this controversy and who would be probable readers of the promotional materials and publications.86 82 Id. at 2. 83 Id. 84 Id. at 3. 85 See Natl Life Ins. Co. v. Phillips Publg, Inc., 793 F. Supp. 627 (D. Md. 1992). 86 Id. at 638.
150 In determining the specialized na ture of the community, the court looked to the target audiences of the publications in question, which entailed not an inquiry into a geographic area but an inquiry into a specialize d, professional community.87 Among the members of the publications target audiences, the court concl uded that National Life had unque stionably attained a prominent status.88 Unlike previous decisions, the National Life court combines the targ et audience of the publication the investment comm unity with the recognition of a sub-community to ascertain its definition of community for the case. A community defined by the boundaries of the pr ofession was also recognized by the U.S. District Court for the District of New Mexico in its 1994 decision in Lebya v. Renger.89 In the case, an anesthesiologist sued a physician and a physicians a ssociation, alleging that negative comments by the physician to other doctors and a hospital committee caused the anesthesiologist to be denied staff priv ileges at the hospital.90 In its discussion, the cour t noted that at least one doctor testified he did not be lieve the anesthesiologist ha d a good reputation within the professional community.91 The court noted that one doctor saying that another did not live up to the standards of the profession or have a good re putation within the community certainly had the potential to cause injury to repu tation within such a community.92 As a result, the court denied 87 Id. 88 Id. When the bald facts of Plaintiffs corporate size are coupled with its press coverage, its leadership in national insurance organizations, and its extensive national advertising, National Lifes prominence in this community is undisputed. Id. 89 874 F. Supp. 1218 (D. N.M. 1994). 90 Id. at 1219-1220. 91 Id. at 1221. The fourth statement cam e in response when Dr. Lewis was asked about whether Dr. Renger gave any impression as to what Dr. Leyba's reputation was in the community as an anesthesiologist. Id. 92 Id. at 1221-1222.
151 the defendants motion for summary judgment on th e defamation claim, finding that injury to reputation within the community could have occurred.93 State Court Cases State courts, too, have weighed in on the pr oper definition of community for the purposes of a defamation lawsuit. As far back as 1893, the Louisiana Supreme Court heard a case in which the plaintiff alleged th at his daughters reputation had b een injured in their residential community.94 Given that the lawsuit, like many during the years before the mass media, alleged that the defendant made defamatory statements in public about his daughter being seduced by a man in the community, it is not surprising that the residential commun ity was the community chosen.95 However, as mediums of mass communication became more pervasive, states began to take that into consideration more frequently in evaluating the proper scope of the community. Exploring the U.S. Supreme Courts 1919 Peck decision, the Supreme Court of Oregon recognized in 1930 that a plaintiff need not prove that every member of the public thought less of his reputation after a defamatory comment.96 In the case, the plaintiff sued the editor, publisher and printer of a Finnish-language newspaper that was widely circulated in Oregon, alleging an article in the newspaper called the plaintiff an agitator who wa s trying to disrupt the local union.97 Quoting Peck, the Oregon court found that even thoug h the plaintiff alleged that he had 93 Id. at 1228. 94 See Lester v. Corley, 13 So. 467 (La. 1893). The Kansas courts have also used residential community as the community in which to determine whethe r actual injury to reputation occurred. See Gobin v. Globe Publg. Co., 649 P.2d 1239, 1244 (Kan. 1982). By the gambit followed here, plaintiff was able to claim and be awarded substantial damages for claimed harm to his innermost feelings, all the while preventing the jury from hearing and determining what his true reputation was in the community of his residence, and from determining whether the publication complained of damaged that reputation in the least. Id. 95 Id. at 468. 96 See Reiman v. Pacific Development Soci ety et. al, 284 P. 575 (Ore. 1930). 97 Id. at 576-577.
152 been subjected to public hatred, contempt, or ridicule that the word public need not be read to mean every member of the community.98 Instead, the court said it was enough that the statement obviously would hurt th e plaintiff in the estimation of an important and respectable part of the community.99 Although cases involving publication in a newspaper were becoming more common, the Oregon court was still hesitant to recognize a larger community outside the readers of the Finnish-language newspaper or to require the plaintiff to prove injury to reputation in the eyes of a majority of the public in the geographic community. In 2006, a Florida appellate court addressed th e notion of a substant ial and respectable minority.100 Rapp v. Jews for Jesus dealt with a defamation lawsu it brought by the stepmother of an employee of a religious organization, whos e newsletter and Web site claimed the Jewish stepmother had accepted Christian beliefs.101 In addressing whether the statement was defamatory, the court opined that it must be look ed at in the manner in which the average person in the community would view it.102 Along those lines, the court looked to the Restatement (Second) of Torts, which says in a comment: A communication to be defamatory need not te nd to prejudice the other in the eyes of everyone in the community or of all of his associates, nor even in the eyes of a majority of them. It is enough that the communication woul d tend to prejudice him in the eyes of a substantial and respectable minority of them, and that it is made to one or more of them or in a manner that makes it proper to assume th at it will reach them. On the other hand, it is not enough that the communication would be der ogatory in the view of a single individual or a very small group of persons, if the group is not large enough to constitute a substantial minority. If the communication is defamatory only in the eyes of a minority group, it must be shown that it has reached one or more persons of that group. Although defamation is not a question of majority opinion, neither is it a question of the existence of some 98 Id. at 578. 99 Id. ( quoting Peck v. Tribune Co., 214 U. S. 185 (1909)). 100 See Rapp v. Jews for Jesus, 944 So.2d 466 (Fla. Dist. Ct. App. 2006). 101 Id. at 462. 102 Id. at 465.
153 individual or individuals with views sufficiently peculiar to re gard as derogatory what the vast majority of persons regard as innocen t. The fact that a communication tends to prejudice another in the eyes of even a substantial group is not enough if the group is one whose standards are so anti-social that it is not proper for the cour ts to recognize them.103 The court then says, had it found a Florida co urt that adopted the Restatement position, the plaintiffs case might be allowed to continue.104 However, because it had not, the plaintiffs defamation claim was dismissed.105 Along those lines, the Supreme Judicial Court of Massachusetts dea lt with a 1974 case in which the plaintiff architect sued the publisher of a promotional newsletter after the newsletter listed another architecture firm as working on the project, statemen ts the plaintiff believed were defamatory.106 In deciding the case, the court noted that although the statements may have appeared innocent to members of the general public who came in to contact with the brochure, the statements could still be actionable in the plaintiff architects community.107 Thus, because the plaintiff was alleging injury to professi onal reputation, the proper community in which to examine whether there was harm is that of profe ssional architects.108 Requiring otherwise would provide no protection to the plain tiffs professional reputation: It would be anomalous at best if words cl early understood in a defamatory sense among that community should fail to be actionable mere ly because they would appear innocent to the general public.109 103 Id at 466 ( quoting RESTATEMENT (SECOND) OF TORTS 559 cmt. e (1977)). 104 Id. at 466. 105 Id. 106 See Sharratt v. Hous. Innovations, Inc., 310 N.E.2d 343 (Mass. 1974). 107 Id. at 346. 108 Id. 109 Id.
154 Thus, the court looked to the ta rget audience of the publication, which happened to also be the plaintiffs professional community, a sub-community of architects and real estate developers. Once again, a court has based the definition of community not on geogr aphical boundaries but on professional affiliations. The Oregon Supreme Court took a similar position when it opined that intraoffice dissemination of defamatory materials could be actionable.110 In the case, a former supervisor sued a union steward for circulating material s implying that plaintiff was an alcoholic.111 Citing the Kansas Court of Appeals, Or egon court wrote that protecting ones reputation in both the residential and occupational communities is at the heart of the defamation tort.112 An individual's interest in main taining a good reputation in the bu siness community to which the individual belongs is not m odified by the individual's re lationship to the defamer.113 As a result, the court ruled that the plain tiff could have suffered injury to reputation within his work community that would be redressable in tort. Although the Massachusetts court may have be en willing to recognize a sub-community of professionals and the Oregon court allowed intr a-office defamation claims to proceed, a state appellate court in Delaware w ould not recognize a distinct su b-community when the plaintiff was a prison inmate.114 The defamation lawsuit was filed after a television station aired a 110 See Wallulis v. Dymowski, 918 P.2d 755 (Ore. 1996). 111 Id. at 757. The Kansas courts have also recognized prof essional communities as being acceptable for determining defamatory meaning. In Luttrell v. United Telephone Systems, Inc., the Kansas Court of Appeals opined Certainly, damage to one's reputation within a corporate community may be just as devastating as that effected by defamation spread to the outside. 683 P.2d 1292 1294 (Kan. App. 1984). 112 Id. at 759 ( quoting Luttrell, 683 P.2d at 1294). 113 Id. at 760. 114 See Saunders v. Bd. of Directors, WHYY, 382 A.2d 257 (Del. Super. Ct. 1978).
155 broadcast referring to the incarcerat ed plaintiff as an FBI informant.115 In rejecting the plaintiffs claim for defamation, the court noted that defa mation only protects a person from injury to reputation among right-minded people.116 Therefore, the court r easoned that although the broadcast may injure the plaintiffs reputati on among the prison community, it would not be reduced in the eyes of the general public:117 However, it is not one's reputation in a limite d community in which attitudes and social values may depart substantially from thos e prevailing generally which an action for defamation is designed to protect.118 In denying the plaintiffs right to protect his reputation within the prison community, the court also noted that the broadcast was made to a gene ral audience, not specifically to the incarcerated community.119 Much like the courts that refuse to acknowledge professional sub-communities, the Saunders court invalidated the plaintiffs subcommunity claims by instead imposing upon him a larger community the genera l communitys television audience. In 1986, a New York trial court dealt squarely with the issue of community in determining whether Time magazine was liable for defaming the plaintiff, an Orthodox Jewish rabbi, in Weiner v. Time & Life Inc .120 Writing an article about anti-Semitic violence near Yeshiva University in New York City, Time quoted the rabbi as saying he removes his yarmulke when he drives.121 The rabbi, who belongs to a small Orthodox sect in Upper Manhattan sued, alleging 115 Id. at 258. 116 Id. at 259 ( quoting both Lawlor v. Gallagher Presidents' Report, Inc., 394 F. Supp. 721 (S.D.N.Y 1975); Sharratt 310 N.E.2d at 343). 117 Id. 118 Id. 119 Id. 120 507 N.Y.S.2d 784, 785 (N.Y. App. Div. 1986). 121 Id.
156 such statements were libelous.122 The trial court refused to accept the plaintiffs definition of community, saying it would be impossible to hol d a national publication whose audience spans the multitudes of race, ethnicity and religion to a different standard in each community in which it published: Libel is a warped mirror which gives back a gr ossly distorted picture of reality to those who view it. But if the mirror is to be deemed faulty, it must presen t a distorted view to those who gaze upon it squarely and with no ecce ntric perceptions or preconceptions. If the mirror gives back a fair refl ection, it cannot be condemned because some few may think they see figures and shadows not perceived by most.123 The court noted that focusing on small enclaves in hibits our ability to s ee the bigger picture in context, examining how the published statements we re viewed in the eyes of the majority of those who read them:124 While it is obvious that a person can only be in jured in his community, i.e., with those who know him personally or by reputa tion, the corollary is also tr ue that a person cannot be injured by the feelings of those he does not know and will never meet.125 As a contrast, the Weiner court compared the notion of co mmunity in defamation actions to that of community in obscenity, where the cour ts use a community standard without reference to a unique or special minority to de termine whether expression is obscene.126 As a result, the court rejected the plaintiffs construction of community, saying his reputation cannot be judged based on the perceptions of only the small group of people who are familiar with him and his 122 Id. 123 Id. 124 Id. Like the remarkable ultra-magnified perspectives revealed by an electr on microscope, a view which focuses wholly on the microcosm carries us away from recogni zable reality to magnify imperfections into misshapen nightmare shapes and figures. A publication designed to reach a national audience cannot be judged by the standards of a unique and fractional segment of its total readership. Id. 125 Id. 126 Id.
157 strict religious beliefs.127 Instead, the Weiner court judged the statemen t in the view of an ordinary Time reader and concluded it was not defamatory.128 Once again, a court returned to looking at the distributio n of a publication this time a na tional magazine instead of the plaintiffs sub-community to assess injury to reputation. The view in Weiner is one that has frequently been used by New York state courts to determine how to define community in defamation actions. In 1981, a New York appellate court held in Fairly v. Peekskill Star Corp. that the eccentricities of a small group cannot be used as the basis for community to make a determination on defamatory meaning.129 The suit pitted the owners of a care facility agai nst a newspaper, with the plai ntiff alleging a newspaper story contained a defamatory statement about the pr oposed facility the ow ner planned to open.130 The plaintiff also alleged that the description of him as a socia l scientist was both false and defamatory.131 The court, however, in determining wh ether the statement was defamatory, ruled that although some may consider the term unflattering, a substan tial portion of the community must recognize the words as subjecting the plaintiff to public hatred, shame, obloquy, contumely, odium, contempt, ridicu le, aversion, ostracism, degrada tion or disgrace, or to induce an evil opinion of one in the minds of right -thinking persons, and to deprive one of their confidence and friendly intercourse in society.132 Instead, the court ru led the proper community 127 Id. 128 Id. at 786. 129 445 N.Y.S.2d 156 (N.Y. App. Div. 1981) 130 Id. at 156. The article took the position that the planne d facility would not meet State standards concerning the care of the mentally retarded and that a fo rmal application had little chance for success. Id. 131 Id. 132 Id. at 158 ( quoting Sydney v. Macfadden Newspaper Publg. Corp., 151 N.E. 209 (N.Y 1926)).
158 is a larger, more mainstream community. [T]he peculiarities of taste found in eccentric groups cannot form a basis for a finding of libelous inferences.133 Like some of the federal courts had ruled in print defamation cases, the Superior Court of Delaware concluded that the proper community for a broadcast defamation case was defined by the geographic distribution ar ea of the statements. In Q-Tone Broadcasting Co. v. Musicradio of Maryland the court ruled on a motion to determine wh ether the plaintiffs were public figures.134 In doing so, the court was require d to ascertain the pr oper community and cited a Fourth Circuit decision for the proposition that community is the area where the alleged defamation took place. Nationwide fame is not necessary.135 Thus, in Q-Tone the court considered the proper community to lie in the geographic area in whic h the radio stations br oadcast signal could be heard.136 Place of publication was also a de ciding factor in an Ohio a ppellate courts determination of community. In Waterson v. Cleveland State University a university police official sued the university for defamation after an editorial in the university newspaper claimed the official had a reputation for excessive use of force, racism and homophobia.137 When determining whether the lower court erred in finding the plaintiff to be a public official, the appellate court discussed community in the context of plaintiff status.138 The court reasoned that the audience to whom the 133 Id. 134 1995 WL 875438 (Del. Super. Ct.) 135 Id. at *5 ( quoting Waldbaum v. Fairchild Publications 627 F.2d 1287, 1296 n. 22 (D.C. Cir. 1980)). 136 Id. at *6. 137 639 N.E.2d 1236 (Ohio Ct. App. 1994). 138 Id. at 1239.
159 editorial was targeted was the proper community for the defamation action.139 Thus, in the case at hand, community was defined as the Cleveland State University community.140 The Courts Look at Community: Online Defamation In their limited discussions of community, cour ts in online defamation cases have begun to look at community as a result of examining ju risdictional questions. Fo r the most part, these courts are determining whether it is proper for the court to decide the merits of the case. Wagner v. Miskin is a prime example of a case in which the c ourt discussed community in the context of answering a preliminary question about whethe r is has the authority to hear the case.141 In Wagner the North Dakota Supreme Court was as ked to determine whether the North Dakota courts had jurisdiction over Internet co mmunications originati ng outside the states borders especially when [the comments were] not particularly and exclusively directed toward the State.142 The 2003 case involved a University of North Dakota college student who had been stalking and harassing her professor usi ng electronic communications. The professor sued and the state trial court awarded him $3 million in damages for libel and intentional interference with business relationships.143 In addressing its first Internet jurisdiction case, the North Dakota Supreme Court held that the co mmunications were directly targeted toward that state.144 The court looked at the Internet a ddress, www.undnews.com, as well as the subject matter stories 139 Id. Finally, the CSU community is the principal audience of the publication in which the editorial in question appeared, precisely the audience with the greatest intere st in the performance of CS U police officers, including plaintiff. Id. 140 Id. 141 660 N.W.2d 593 (N.D. 2003). 142 Id. at 596. 143 Id. at 595. 144 Id. at 599. Contrary to her assertion, we conclude from the record available to us that Miskin did particularly and directly target North Dakota with her website, specifically North Dakota resident John Wagner. Id.
160 and links about UND issues and sta ff to make that determination.145 Noting that the case primarily involved Internet comm unications, the court went on to reason that the student had physical connections to North Dakota during th e communications as well: she was a state resident at one time, attended a state univers ity, lived in campus housing and even used the schools computer network for some of the communications.146 Although the court did not explicitly examine community in the case, the factors it touches on as a part of its jurisdictional inquiry are similar to those other courts have addressed when defining community in traditional defamation cases. Courts may also look at community as a part of the choice-of-law analysis. Condit v. Dunne is representative of this approach.147 There, the U.S. District Court for the Southern District of New York was asked to decide whet her the substantive defamation law of California or New York applied to the defamation acti on brought by former Congressman Gary Condit against Vanity Fair correspondent Dominick Dunne.148 In the case, the court discussed several statements that appeared at Entertainment Tonight Online, an Internet celebrity gossip site.149 Although the plaintiff alleges the defamatory stat ements led millions of members of the public to view him in disrepute, the court narrows in on a more select community when making the choice-of-law determination: 145 Id. 146 Id. 147 317 F.Supp.2d 344 (S.D.N.Y. 2004). 148 See Condit 317 F. Supp.2d at 367. 149 Id. ET Online quotes defendant as stating that Gary Condit ride s with The Hell's Angels as a motorcyclist, and repeats defendant's original theory that Ms. Levy was taken away on the back of a motorcycle as a favor to plaintiff. Id.
161 In general, to determine which state has the mo st significant interest in, or relationship to, the litigation, the Court should look chiefly to the parties' domiciles and the locus of the tort.150 Noting that the locus of the tort is the locati on where the party was harmed, the court reasoned that when defamatory statements are published na tionally, the plaintiffs injuries can also occur nationally.151 To determine the proper jurisdiction, the court looked at where the plaintiff suffered the greatest injury, where the statem ents were published, where the authors and publishers reside and where the activities spoken about occurred.152 The court concluded that Californias interest in protecti ng the plaintiff outweighed New York s interest in protecting the speaker: [N]one of the conduct about which defendant spoke took place in Ne w York, and plaintiff has no specific connection to New York. More over, defendant's comments also have no specific connection to New York, except that de fendant happened to be physically present in New York when he uttered the statements that were broadcast nationwide. Defendant, for example, did not speak to a New York audience or through a New York media outlet about a matter of national significance, other than at the New York dinner party. Instead, defendant repeatedly spoke to a national a udience about circumstances related to a Congressman from California.153 Such an interest was tied to protecting the pl aintiffs reputation where it likely suffered the greatest harm: in California, where he was formerly an elected representative.154 Although this argument was made in a decision about jurisdiction, the same rationale may be applied to determine community in an online defamation case. For example, although online defamation 150 Id. at 352 ( quoting Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir. 1999)). 151 Condit, 317 F.Supp.2d at 353. 152 Id. at 354. 153 Id. 154 Id. As plaintiff was a Congressman, his reputation necessa rily was a matter of national significance, but it mattered most in California where he had been elected to office, and where the people whom he represented resided. Id.
162 may injure a plaintiffs reputation internationally, the courts may decide to define community in terms of the location where the greatest injury occurred. One court has taken a substantive look at co mmunity in an online defamation case. In Rapp ,155 Floridas Fourth District C ourt of Appeal refused to accep t the plaintiffs construction of community when she sued after an orga nizations online newsletter reported she had surrendered her Jewish faith and accepted Christian beliefs a st atement she argued would injure her reputation in the ey es of many Jewish people.156 There, the court ruled that the community to whom the statements had been published a religious group who would have looked positively upon such statements was the proper community to be used when determining whether a statement is defamatory.157 Even though the plaintiffs ame nded complaint proved the Internet statement reached members outside the community, namely one of the plaintiffs relatives, the court refused to find the statement defama tory by relying on the common mind rule.158 Under Floridas common mind rule, the Florida court found a reasonable person would interpret the statements as having been conveyed in a positive, non-defamatory manner.159 Thus, even though the Internet publication was accessible to one group who could interpret the words to be defamatory, the court looked specifically at the community to whom the communication was targeted. In doing so, the court ruled that Jews for Jesus the target community for the newsletter and Web site would not think le ss of the plaintiff based on the statements. 155 See infra 156 See Rapp, 944 So.2d at 465. 157 Id. 158 Id. 159 Id.
163 Conclusion The American legal system has amassed a numbe r of cases dealing wi th the definition of community in defamation actions. Some of th e courts have drawn upon the language of the Restatement (Second) of Torts, ut ilizing its statements to determ ine how large a community must be and how many members must think less of th e plaintiff for a cause of action to succeed. Others have followed the guidance of the U.S. Supreme Court in its limited discussions of community in Peck and Milkovich And even others have ventur ed out on their own, carving out a particular definition of community that is a ppropriate to the case at hand sometimes looking at the distribution of a publication or the cohesive nature of a sub-community. Despite the amount of variance in how courts define community, ce rtain trends have emerged in the jurisprudence. As a general rule courts often look at one of three factors to determine proper community: where the defama tory statements were published, where the plaintiff resides or where the plaintiff works. O ccasionally, courts may consider those factors in conjunction with other factors, including the size of the co mmunity or the mainstream acceptance of a sub-group, when trying to proper ly ascertain the community for a defamation action. As a result, defining community in cases ha s been a fairly fact-sensitive, ad-hoc decision. Because defining community can be a fact-sensi tive, ad-hoc decision, the courts have not crafted separate rules for online defamation cases However, the nature of the Internet has already begun to play a role in these determinations of commun ity. For example, courts dealing with online defamation cases are beginning to look at the potential for more widespread communication when deciding cases involving onlin e defamation. Similarly, there seems to be recognition on the part of at l east one court that th e online community viewing a statement may be very different from the traditional community in which the plaintiff lives or works. Thus, it appears courts may be likely in online defamation cases to apply a variety of methods to define
164 community by balancing the multiple interests cr eated by the facts. In general, though, most courts examining online defama tion cases seem to be following principles developed in traditional print and broadcast defamation cases. Geographic Area of Publication Several courts have looked at the site of publication to determine proper community in defamation actions. Several federal appellate co urts along with state courts in New York, Delaware and Ohio have taken this appro ach, noting that the pr oper community can be determined based on the reach of a publication.160 This approach takes in to account the audience that may have come into contact with any defa matory statements, and it has been applied in cases involving newspapers, na tional magazines, radio statio ns and television stations. Site of Plaintiff Residence A number of courts, including the Fourth and Seventh circuits, have used the community in which the plaintiff resides as guidance in co nstructing the notion of community in defamation cases. This view rests on the noti on that one is most likely to ha ve his reputation harmed in the community in which he resides. Some courts just ify this approach by notin g that ones reputation in the residential community is at the forefront of his identity. This view seems to come primarily from the Restatement (Second) of Torts. Specialized or Professional Community Using a specialized setting typically a sub-community or professional community to define community is one of the tests that has be come more popular among cour ts in recent years. Rooted in Justice Oliver Wendell Holmes exam ple of a medical doctor losing standing among 160 See infra
165 his peers in the medical community,161 this notion has largely developed in jurisprudence since the 1980s. Courts in Oregon and Kansas have fo llowed this notion, em phasizing the importance of ones professional reputation within the wo rkplace as well as his reputation within the residential community.162 Other courts, including federal c ourts in New York and New Mexico, as well as state courts in Massachusetts and Oregon, have recognized sub-communities to define community in defamation actions. However, some state courts, including those in New York, Delaware and Florida, have explicitly rejected the use of sub-communities. Mixed Methods Most often, it seems, even though courts may apply one method, they often weigh factors from a number of the methods to determine pr oper community. For example, a court may look at both where a person works and resides.163 Or it may look both at a publ ications target audience and how that overlaps with the plaintiffs community.164 Thus, it seems the courts often use more than one gauge of the plaintiffs community in both traditional and onlin e defamation cases, with one factor weighted more significa ntly given the facts of the case. 161 Peck 214 U.S. at 190. 162 See infra 163 See infra 164 See infra
166 CHAPTER 5 DEFINING PLAINTIFF STATUS The public person/private person dichotomy plays an important role in defamation litigation. Courts may use a plaintiffs status to make several determina tions critical to the litigation. First, the evaluation of the plain tiffs status determines the level of fault1 he must prove to succeed in a defamation action. Second, courts may look to the plaintiffs status to determine his or her proper community. Finally, c ourts may again turn to the plaintiffs status when evaluating the proper level of damages. In any sense, the courts must determine the plaintiffs status before such important decisions can be made. The Courts Look at Plaintiff Stat us: Print and Broadcast Defamation While the U.S. Supreme Court has addressed pl aintiff status on nu merous occasions, its jurisprudence provides overarching themes to serv e as guidance for the lo wer federal courts. In its opinions, the Court has broken pl aintiff status into three categor ies: public officials, public figures and private persons. As a result of these di stinctions, plaintiffs ma y be required to prove defendants acted with varying levels of fault in order to succeed in their defamation lawsuits. Although the Court created three categories of plaintiffs, it di d not provide bright-line rules for which plaintiffs should be placed in which categ ories. Thus, the notions of plaintiff status discussed by the Supreme Court are merely a st arting point from which the lower courts begin their analysis. U.S. Supreme Court The body of Supreme Court precedent on plainti ff status is a well-developed one, crafted by the Court in a series of six major cases. A lthough the Court initially constructed the public 1 This refers to whether a plaintiff must prove actual ma lice, which is the case with public officials and public figures, or negligence, which is the standard for some private-person plaintiffs. Blacks Law Dictionary defines fault as The intentional or negligent failure to maintain some standard of conduct when that failure results in harm to another person. See BLACKS LAW DICTIONARY (8th ed. 2004).
167 official category, which it linked with th e actual malice standard of fault in New York Times v. Sullivan the justices went on to carve out a public figure category as well as the remaining private person category. Through the years, the public figure category has grown to encompass three-subcategories of public figures: all-purpose, or general; limited purpose, or vortex; and involuntary public figures. All three types of public figures can be he ld to the actual malice fault standard in specific instances. The remaini ng category, the Court noted, contained private person, whom the justices said must prove negligence at a minimum. Although the Supreme Court carved out the categories in six major cases the lower courts continue to flesh out the specifics of membership within th e categories of plaintiff status. New York Times v. Sullivan: Public officials and actual malice In 1964, the U.S. Supreme Court brought defa mation within the parameters of First Amendment protection in its landmark New York Times v. Sullivan2 ruling, in which the Court held that public officials woul d be required to prove actual ma lice to succeed in a defamation action.3 At the heart of the case was a one -page advertisement placed in the New York Times. The ad detailed the Alabama arrest of the Rev. Ma rtin Luther King Jr. and implied that such law enforcement efforts were an attempt to quell the Civil Rights Movement. L.B. Sullivan, an elected city commissioner in Montgo mery, Ala., filed suit against the Times as well as individuals listed as signator ies of the advertisement, clai ming that the ad had personally defamed him by speaking disparagingly of the city s police force. At the time, Alabamas libel statute did not require Sullivan to prove actual harm from the ads publication. Additionally, because the advertisement contai ned minor factual errors, the Times could not rely on truth as a 2 For a thorough analysis of New York Times v. Sullivan see ANTHONY LEWIS, MAKE NO LAW: THE SULLIVAN CASE AND THE FIRST AMENDMENT (1992). 3 See New York Times v. Sullivan, 376 U.S. 254 (1964) (holding that the First Amendment requires public officials prove actual malice to prevail in libel lawsuits against media defendants concerning matters of public importance).
168 defense under Alabama law.4 At trial, Sullivan was victorious, winning a $500,000 judgment5 against the news organization. On appeal to the Alabama Supreme Court, Su llivan again prevailed, with the states high court affirming the trial judges ruling and the final verdict.6 The Alabama court noted that the jury could have rightfully infe rred that the statements were of and concerning Commissioner Sullivan and that the verdict was not excessive based on the possible inference of malice that could be taken from the Times failure to correct misstatements in the advertisements.7 Having lost its appeal to the state Supreme Court, the New York Times petitioned the U.S. Supreme Court for a writ of certiorar i, which was granted in 1964.8 The Supreme Court ruled 9-0 that Sullivan could not rely on Alabamas strict liability libel statute to prevail in a civil lawsuit against the New York Times Company for the political advertisement, which ran in the newspaper.9 The state law, requiring no proof of fault or falsity, did not provide the protection required by the First Amendment, according to Justice William 4 The Supreme Court opinion noted with detail the manner in which the verdict was rendered: The trial judge submitted the case to the jury under instructions that the statements in the advertisement were libelous per se and were not privileged, so that petitioners might be held liable if the jury found that they had published the advertisement and that the statements were made of an d concerning respondent. The jury was instructed that, because the statements were libelous per se, the law im plies legal injury from the bare fact of publication itself, falsity and malice are presumed, general damages need not be alleged or proved but are presumed, and punitive damages may be awarded by the jury even though the amount of actual damages is neither found nor shown. Sullivan, 376 U.S. at 262. 5 A $500,000 judgment in 1962 would be the equivalent to a judgment of more than $3.4 million in 200. See Federal Reserve Bank of Minneapolis, What a Dollar is Worth http://www.minneapolisfed.org/re search/data/us/calc/ (last visited July 25, 2007). 6 See 144 So.2d 25 (Ala. 1962). 7 See id 8 See 371 U.S. 946 (1964). 9 Too see a copy of the advertisement, see LEWIS, supra note 2.
169 Brennans majority opinion.10 Noting that democracy requires citizens to be able to discuss political and social i ssues, Brennan wrote: Thus we consider this case against the background of a pr ofound national commitment to the principle that debate on public issues s hould be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.11 Brennan noted that criticism of government officials can not lose its protection merely because it may endanger the officials reputations.12 Instead, Brennan wrote, criticism of government officials is at the very he art of American government.13 Noting the immunity that states provide their highest officials engaged in critical commentary, Brenna n wrote that it would be only logical to extend such protection to c itizens in the role of government critic.14 Thus, public officials would be required under the Constitution to prove actual malice in order to recover damages for defamation the presumption of malice, or reckless di sregard for the truth,15 would not be constitutional.16 With its ruling in Sullivan the Supreme Court dramatically changed the law of defamation in the United States, indicating that in the future public officials would be required to prove fault 10 Sullivan, 376 U.S. at 264. We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct. Id. 11 Id. at 270 12 Id. at 273 13 Id. at 274. 14 Id. at 283. 15 Blacks Law Dictionary defines actual malice as Kno wledge (by the person wh o utters or publishes a defamatory statement) that a statement is false, or r eckless disregard about whethe r the statement is true. See BLACKS LAW DICTIONARY (8th ed. 2004). 16 Sullivan, 376 U.S. at 284.
170 and falsity to prevail in a defama tion action against media defendants.17 Once the Court raised the burden on public official plaintiffs in libel cases, it would only be a short time before it commented on libel plaintiffs w ho were not considered public o fficials but had ascertained a certain level of societal prominence. Curtis Publishing v. Butts: A standard for public figures Within three years of Sullivan, public figures would also essen tially be required to prove actual malice.18 In the companion cases of Curtis Publishing v. Butts and Associated Press v. Walker the Supreme Court recognized a second set of defendants who would be required to prove reckless disregard to succeed in a libel case. These public figures, as the Court termed them, would be treated much like Sullivan s public officials. In Butts, former University of Georgia football coach and current university athletics director Wally Butts sued the publisher of the Saturday Evening Post alleging that it defamed him by reporting he conspired wi th coaching legend Bear Bryant to fix a game between his Georgia Bulldogs and Bryants Crimson Tide of Alabama.19 Butts, whose salary was paid by an alumni fund, could not be cons idered a public official under Sullivan. However, the Court noted that by extension, the pr ivilege announced in Sullivan could be expanded to protect defamatory criticism of nonpublic persons who are neverthele ss intimately involved in the resolution of 17 Id. at 279-280. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Id. 18 See e.g., Curtis Publg v. Butts, Associated Press v. Walker, 388 U.S. 130 (1967) (holding that the U.S. Constitution requires a public figure prove recklessness to succeed in a defamation action regarding a matter of public concern). 19 Among the passages in the article were two particularly striking paragraphs. Not since the Chicago White Sox threw the 1919 World Series has there been a sports story as shocking as this one. Id. at 136. The chances are that Wally Butts will never help any football team again. The investigation by university and Southeastern Conference officials is continuing; motion pictures of othe r games are being scrutinized; where it will end no one so far can say. But careers will be ruined, that is sure. Id. at 137.
171 important public questions or, by reason of their fame, shape events in areas of concern to society at large.20 Thus, the public figure was born. Public figures, the court said, can play as impor tant of a role in sh aping society as public officials.21 As a result, the Court was unwilling to diffe rentiate between such situations on the assumption that criticism of private citizens who seek to lead in the determination of policy will be less important to the public interest th an will criticism of government officials.22 Quoting the Declaration of Independence, th e justices noted that communi cating information of a public concern was an unalienable right.23 Libel actions involving public figures are far more akin to those involving public officials th an they are to those pursued by private people, and as a result, the Court extended the constitutional protections of actual malice to those being sued by public figures as well.24 A plaintiff does not become a public figure based on the actions of the defendant, who would then be creating his or he r own defense, in essence. In Hutchinson v. Proxmire, the U.S. Supreme Court found Ronald Hutchinson, a universit y professor, to be a private person despite the amount of publicity he got after William Pr oxmire, a Wisconsin senator, awarded him a Golden Fleece award.25 The award, given monthly by Proxm ire, was designed to put the 20 Id. at 164. 21 Id. at 145. In many situations, policy determinations wh ich traditionally were channeled through formal political institutions are now originated and implemented thro ugh a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. Id. 22 Id. at 148 ( quoting Pauling v. Globe-Democrat Publg Co., 362 F.2d 188, 196 (8th Cir. 1966)). 23 Curtis Publg, 388 U.S. at 149. 24 Id. at 150. We consider and would hold that a public figure who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme depa rture from the standards of investigation and reporting ordinarily adhered to by responsible publishers. Id. 25 443 U.S. 111, 114 (1979) (holding that a university professor was not a public figure in a defamation action based on the press interest in the case or becau se of an interest in public spending of taxpayers money to fund his grant).
172 spotlight on wasteful government spending, and the federal agencies selected were chosen based on grant aid they contributed toward Hutchi nsons research on aggression in animals.26 After publishing a statement in the Congressional Record, Proxmire also included mention of the Golden Fleece in his newsletter and press release.27 Proxmire even discussed Hutchinsons grant-funded research on television, alt hough he did not mention Hutchinsons name.28 Both the U.S. District Court for the Dist rict of Wisconsin and the Sevent h Circuit decided that Hutchinson was a public figure.29 Hutchinson appealed, and the U.S. Supreme Court granted certiorari.30 Before the Supreme Court, Proxmires atto rney argued that Hutchinson was a limitedpurpose public figure31 with regard to the public money he received to pursue his research.32 He based this argument on the fact that local ne wspapers reported on Hu tchinsons successful application for funds and that Hutchinson had access to the media to respond to the Golden Fleece announcement.33 However, the Court was not persua ded that these two factors alone would transform Hutchinson from a private pe rson into a limited-purpose public figure: On this record, Hutchinson's activities and publ ic profile are much like those of countless members of his profession. His published writ ings reach a relatively small category of professionals concerned with research in human behavior. To the extent the subject of his published writings became a matter of contr oversy, it was a consequence of the Golden 26 Id. at 114-115. At the heart of the lawsuit is a comment published by Proxmire in the Congressional Record It is time for the Federal Government to get out of this monkey business. In view of the transparent worthlessness of Hutchinson's study of jaw-grinding and biting by angry or hard-drinking monkeys, it is time we put a stop to the bite Hutchinson and the bureaucrats who fund him have been taking of the taxpayer. Id. at 116. 27 Id. 28 Id. 29 See 431 F. Supp. 1311, 1327 (D.Wis.1977); 579 F.2d 1027 (7th Cir. 1978). 30 Hutchinson, 443 U.S. at 122. 31 A limited-purpose public figure is a person who, having become involved in a particular public issue, has achieved fame or notoriety only in relation to that particular issue. See BLACKS LAW DICTIONARY (8th ed. 2004). 32 Hutchinson, 443 U.S. at 134-135. 33 Id. at 135.
173 Fleece Award. Clearly, those charged with defa mation cannot, by their own conduct, create their own defense by making the claimant a public figure.34 The Court noted that instead of pointing to a specific controversy, th e defendants claimed the generic interest in overseeing the expenditure of public money a subject on which Hutchinson sought no notoriety.35 If that alone were enough to raise so meone to the level of a public figure, the Court reasoned, there would be an unlimited numb er of researchers and professors in such a category.36 Furthermore, the Court noted that Hutchi nsons access to the media was limited to responses about the Golden Fleece and that he did not have the type of extended and continuous access that is one of the accout erments of having become a public figure.37 Rosenbloom v. Metromedia and Gertz v. Welch : The standard for private persons The next logical step following Sullivan and Butts was to address the application of actual malice to private persons. Initiall y, the Supreme Court attempted to clarify standard of fault in some cases involving private persons, when it ruled in Rosenbloom v. Metromedia .38 The case involved a magazine publisher who sued a radio stat ion after the station repe atedly broadcast that the petitioner was arrested for possession of obscen e literature, which the police had seized from his business.39 Although the broadcasts did not menti on Mr. Rosenbloom by name, they instead referred to him as a girliebook peddler and as being involved in a smut literature racket.40 34 Id. 35 Id. 36 Id. 37 Id. at 136. 38 See Rosenbloom, 403 U.S. at 29 (holding that private persons must prove actual malice by clear and convincing evidence in defamation actions concerning matters of public importance). 39 Id 40 Id
174 The trial jury found for Rosenbloom, awarding him general damages in the amount of $25,000 and punitive damages of $725,000, re duced to $250,000 by the court.41 After the states high cour t reversed, holding that New York Times actual malice was the proper standard to be applied to the defendant the U.S. Supreme Court granted a writ of certiorari.42 The plaintiff in Rosenbloom was neither a public official nor public figure, which would have required a showing of actual malice.43 Instead, the defamatory remarks made about him occurred in the discussion of a subject he conceded to be of public interest.44 In holding that private plaintiffs must, by clea r and convincing evidence prove act ual malice, in cases where the matter is once of public importance, a plurality45 of the Court applied the New York Times standard to private plaintiffs in a limited set of circumstances.46 In Rosenbloom, the plurality wrote that some issues may be important enough to the public that a showing of actual malice woul d be justified to ensure that speech on such subjects would not be chilled by the imposition of a lesser fault st andard. These issues of public importance, or matters of public concern, were at the core of speech pr otected by the First Amendment.47 The Court returned to Thornhill v. Alabama48 to support its decision. There, it noted: 41Id 42Id 43 Id. at 40. 44 Id. 45 Justice Brennan authored an opinion in which Justices Blackmun and Burger joined. Justices Black and White also concurred in judgment, completing a majority of the Court for the judgment but not for the reasoning. Justice Harlan authored a dissenting opinion and Justice Marshall authored a dissenting opinion in which Justice Stewart joined. Justice Douglas took no part in the case. 46 Id. at 29. 47 Id. at 41. Self-governance in the United States presupposes far more than knowledge and debate about the strictly official activities of various levels of government. Id. 48 310 U.S. 88 (1940).
175 Freedom of discussion, if it would fulfill its hi storic function in this nation, must embrace all issues about which information is needed or appropriate to en able the members of society to cope with the exigencies of their period.49 Justice Brennan, writing for the pl urality, foresaw the difficulties that may arise in determining whether a person was public or private, instead wishing to rely on whether the nature of the discussion was a matter of public concern, as envisioned in Thornhill.50 This view, Brennan concluded, required that myriad i ssues be considered of public concern, pointing to the Courts decisions in Butts and Walker as two cases that concerned dr amatically different matters of public concern: fixing a spor ting event and leading a charge against federal agents.51 Thus, he wrote: If a matter is a subjec t of public or general interest, it cannot suddenly become less so merely because a private individual is involve d, or because in some sense the individual did not 'voluntarily' choose to become involve d. The public's primary interest is in the event; the public focus is on th e conduct of the participant and the content, effect, and significance of the conduct, not the part icipant's prior anonymity or notoriety.52 Rosenbloom s plurality opinion was short-lived, howeve r, and the Court quickly readdressed the private person issue during its 1973-1974 term, when the justices decided Gertz v. Welch The 7th Circuit case pitted th e John Birch Society and American Opinion magazine against Elmer Gertz.53 Gertz, a prominent Chicago attorney was hi red by a family to represent them in their lawsuit against a police officer who had killed their son.54 Because of this, an article in 49 Thornhill 310 U.S. at 102 (holding unconstitutional an Alabam a law that made picketing a criminal offense). In the case, Bryon Thornhill had been convicted of loitering and picketing in Tuscaloosa County, Alabama. The Supreme Court, finding no clear and present danger arising from his activity, ov erturned his conviction. 50 Rosenbloom 403 U.S. at 42. We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous. Id. at 43. 51 Id. at 42. 52 Id at 43. 53 See Gertz, 418 U.S. at 323. 54 Id. at 326.
176 American Opinion labeled Gertz as a Leninist a nd Communist-fronter, based on his litigation against law enforcement.55 As a result, Gertz sued, seeking compensation for harm to his reputation.56 Relying on Sullivan and Rosenbloom v. Metromedia ,57 the Court of Appeals affirmed the district courts ruling based on a finding that Gertz had not shown sufficient evidence of any actual malice on the part of the editors of American Opinion .58 The Supreme Court granted cer tiorari and voted 5-4 to reve rse the 7th Circuit, whose opinion was written by then -Judge John Paul Stevens.59 In doing so, the Court concluded that private persons, such as Elmer Gertz, need not prove actual malic e as established in Sullivan, Butts and Rosenbloom.60 Justice Powell, writing for the majority, rebuked Justice Brennans assertion that deciding whether a matter was of public concern was easier than deciding whether a plaintiff was a public person. Powell wrote for the Court: But this approach (in Rosenbloom) would l ead to unpredictable re sults and uncertain expectations, and it could render our duty to supervise the lower courts unmanageable. Because an ad hoc resolution of the competing in terests at stake in each particular case is not feasible, we must lay down broad rules of general application. Such rules necessarily treat alike various cases involving differences as well as similarities. Thus it is often true that not all of the considerations which justif y adoption of a given rule will obtain in each particular case decided under its authority.61 In providing more protection for private persons, Justice Po well asserted that private persons, unlike public officials and public figur es, dont have the same means of redress to 55 Id 56 Id 57 Rosenbloom, 403 U.S. at 29. 58 Gertz, 418 U.S. at 331-332. 59 Id. at 333. 60 Id. at 351-352. 61 Id. at 343-344.
177 counteract damage to reputation.62 Public officials and public fi gures have greater access to the media and have opened themselves up to criticism based on the highly public nature of their lifestyles.63 In the case of private persons, however, the state has a much greater interest in protecting them from reputational injury.64 To do so, states may rely on any standard of fault that rises above strict liability.65 The Gertz majority did leave open the possibility that individual states could constitutionally requi re even private plaintiffs to prove actual malice in order to succeed in a defamation action.66 Under Gertz, though, actual malice must still be proven for a private person to recover punitive damages.67 Gertz left unanswered the question of the approp riate fault standard for private persons defamed during the discussion of a private matter. That question, pr esented squarely to the Court in Dun & Bradstreet v. Greenmoss Builders,68 was answered in a manner that provided more protection to private plaintiffs seeking to protect their reputati ons on private matters. In ruling that a private person need not prove actual mali ce in order to recover in a defamation lawsuit over a purely private matter, Just ice Louis Powell reasoned that the same balance used in Gertz the states interest in protecti ng reputation versus the First Am endment interest in protecting expression would be appropriate in Dun & Bradstreet .69 In balancing those interests, the Court 62 Id 63 Id at 343-345. 64 Id at 344. 65 Id at 347-348. 66 Id at 348-350. 67 Id 68 See Dun & Bradstreet, 472 U.S. 749 (1985) (holding that a private pe rson need not prove actual malice to recover presumed or punitive damages in a defamation action involving purely private matters). 69 Id. at 757.
178 concluded that the states inte rest was strong and legitimate.70 However, in Dun & Bradstreet the First Amendment interest was found to be substantially lower than in Gertz given the private nature of the speech.71 As a result, the common law rule allowing the award of presumed and punitive damages without a showing of actual malice was upheld.72 After Dun & Bradstreet, the Supreme Court established one more hurdle for private plaintiffs, requiring them to prove falsity in addition to fault in lawsuits against media defendants where the matter was an issue of public concern.73 In Philadelphia Newspapers v. Hepps, the Court heard a case in which Maurice Hepps, a pr ivate person sued after the newspaper reported Hepps had links to organized crime.74 On appeal to the Pennsylva nia Supreme Court, the court interpreted Gertz to mean that although Hepps must prove fault, he need not prove falsity to recover.75 The newspaper appealed and the U.S. Suprem e Court granted certiorari to decide if the Constitution required a showing of fault by private plaintiffs defamed during the discussion of matters of public concern.76 The Supreme Court reversed the state suprem e courts decision, holding that the private plaintiff was required to show falsity to recover damages in a defamation suit against a media defendant where the issue is a matter of public concern.77 The Court reasoned that such a 70 Id. (quoting Gertz, 418 U.S. at 348). 71 Dun & Bradstreet, 472 U.S. at 757-761. 72 Id. at 761. 73 See Philadelphia Newspapers, Inc., v. Hepps, 475 U.S. 767 (1986) (holding that private figures must prove falsity to recover from a media defendant if the defamatory statement stemmed from an issue of public concern). 74 Id. at 769. 75 See 485 A.2d 374, 379 (Penn. 1984). 76 Hepps, 475 U.S. at 769. 77 Id. at 776-777.
179 decision would protect important speech on public i ssues as mandated by the requirements of the First Amendment.78 Allocation of such a burden to the plai ntiff is justified, the Court said, to prevent a chilling effect on speech.79 Such a burden is not unreas onable given that a private plaintiff must already prove actual malice in cases involving matters of public concern.80 As a result of Gertz and Hepps, private plaintiffs suing for de famation stemming from a matter of public concern must prove both fault and falsity. The Supreme Court framework for defama tion has taken on a complex structure.81 As it stands today, public officials and public figures, as well as private plaintiffs seeking punitive damages, must prove actual malice in order to re cover in a defamation acti on. Private plaintiffs who merely seek to recover actual and compensa tory damages need prove only the level of fault established by state law, which can range from ac tual malice to any level of fault greater than strict liability. Such a setup has created both a constitutional framework and state-law framework in which defamation lawsuits must be argued. The Lower Courts and Plaintiff Status Although the Supreme Court has provided much of the framework needed to determine plaintiff status, lower courts have been left to the day-to-day decisions. Thus, the determinations 78 Id. To ensure that true speech on matters of public concern is not deterred, we hold that the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern. Id. 79 Id. at 778. 80 Id. 81 The Court summarized the structure in Hepps When the speech is of public concern and the plaintiff is a public official or public figure, the Constitutio n clearly requires the plaintiff to su rmount a much higher barrier before recovering damages from a media defendant than is raised by the common law. When the speech is of public concern but the plaintiff is a private figure, as in Gertz, the Constitution still supplants the standards of the common law, but the constitutional requirements are, in at least some of their range, less forbidding than when the plaintiff is a public figure and the speech is of public concern. When the speech is of exclusively private concern and the plaintiff is a private figure, as in Dun & Bradstreet, the constitutional requirements do not necessarily force any change in at least some of the f eatures of the common-law landscape. Id. at 775.
180 of which plaintiffs fall into the categories of public official, public figure and private person are hashed out regularly in cases across the countr y. Similarly, the determination of which matters are of public concern and which are not is rou tinely made as cases come up for trial. Although many of these issues are resolved by stipulation in some cases, they are often issues central to the litigation in other cases. Thus, the role of the lower courts in setting such precedent is an important one. Public officials Determining whether a plaintiff is a public official is likely the simplest inquiry for the courts. Guided by the Supreme Courts general discussion in Sullivan that judges, government officials and elected commissioners fall within such a category,82 the lower courts have gone on to address the issue dealing with government em ployees at all levels, including international officers, national officers, state o fficers and even municipal employees.83 As a result, the category of public official has grown somewhat based on determination by lower courts that certain plaintiffs have taken on the role of public officials and therefore should be subject to the actual malice standards. Officials in public education are ofte n considered to be public figures.84 Members of local school boards have been held to be public officials. In Garcia v. Board of Education of Socorro Consolidated School District the Eleventh Circuit ruled that school board members suing the 82 Sullivan, 376 U.S. at 273. If judges are to be treated as men of fortitude, able to thrive in a hardy climate, surely the same must be true of other government officials, such as elected city commissioners. Id. ( quoting Craig v. Harney, 331 U.S. 367, 376 (1947). 83 See, e.g., Varanese v. Gall, 518 N.E.2d 1177 (Ohio 1988) (applying the actual malice standard of New York Times Co. v. Sullivan to an Ohio public official's state-law defamation claim); Sullivan 376 U.S. at 264 (ruling that a municipal public official must prove actual malice to succeed in a defamation claim). 84 Cf., e.g., Kumaran v. Brotman, 617 N.E.2d 19 1, 200 (Ill. App. 1993) (holding that a frequent substitute teacher was a private person for a defamation lawsuit); Nodar v. Galbreath, 462 So.2d 803, 808 (Fla. 1984) (holding that a high school English teacher was not a public official for the purposes of a slander lawsuit).
181 school superintendent for defama tion were public officials and, as a result, must prove actual malice to recover on their claims.85 The appellate court turned to the U.S. Supreme Courts decision in Rosenblatt v. Baer, in which the Court said the: public official designation applies at the very least to those among the hierarchy of government employees who have, or appear to th e public to have, substa ntial responsibility for or control over the conduc t of governmental affairs.86 Despite the board members various arguments, including that they were not school employees, did not get paid and were merely local, the appellate court found they qualified as public officials.87 Citing a long list of cases in which cour t had found elected officials to be public officials, the appellate court noted that public education is among the utmost importance to a community, and school board policies are of ten carefully scrutinized by residents.88 Additionally, the court noted that the public ha s a strong interest in evaluating their job performance, which weighs in favor of considering them to be public officials.89 Similarly, the U.S. District Court for the Dist rict of Minnesota held an elementary school principal to be a public official.90 Shirley Johnson, the principal of a Minneapolis area public school sued after a group of parents wrote a letter to the school board stating: All of these things show me that Shirley Johnson is not a good admi nistrator. She cannot handle the job. In addition to not being able to do the job, sh e has introduced prejudice to the children and faculty. She should not be whin ing about her skin color. Her inability to be a principal has caused more harm to M eadow Lake school and its population than her skin color.91 85 777 F.2d 1403 (11th Cir. 1985). 86 Id. at 1408 ( quoting Rosenblatt v. Baer, 383 U.S. 75, 85 (1966)). 87 Garcia, 777 F.2d at 1408. 88 Id. 89 Id. 90 See Johnson v. Robbinsdale Ind. Sch. Dist, 872 F. Supp. 1439 (D. Minn. 1993). 91 Id. at 1441.
182 The defendants moved for summary judgment, argui ng that the principal was a public official under Minnesota law and ha d not proven actual malice.92 The district court, interpreting Minnesota law, noted the state supreme court s intention to broadly define public figures.93 In Hirman v. Rogers ,94 the Minnesota Supreme Court wrote that any government employees who perform governmental duties, directly relate d to the public interest, are public officials.95 Because the issue was one of first impression in Minnesota, the district court looked to other jurisdictions for guidance, noting a distinct split.96 Because Minnesota courts had ruled that education was a matter of public importance, the district court, noting the favored position to broadly construe public official designations, ruled that an el ementary school principal was a public official under Minnesota law.97 The courts have considered some professors at the university level to be public officials as well.98 In Grossman v. Smart, the U.S. District Court for the Cent ral District of Illinois held that a professor of law who chaired a search comm ittee, along with the Graduate Colleges vice 92 Id. 93 Id. at 1442. 94 257 N.W.2d 563, 566 (Minn. 1977). 95 Id. 96 See, e.g., Palmer v. Bennington School District, Inc., 615 A.2d 498, 501 (Vt. 1992) (elementary school principal is a public official); Kapiloff v. Dunn, 343 A.2d 251, 258 (Md. 1975) (high school principal is a public official), cert. denied, 426 U.S. 907 (1976); State v Defley, 395 So.2d 759, 761 (La. 1981) (school supervisor is a public official); Reaves v. Foster, 200 So.2d 453, 456 (Miss.1967) (high school principal is a public official); Junior-Spence v. Keenan, 1990 WL 17241, *4 (Tenn. Ct. App.1990) (high school principal is a public official). Cf. Kumaran 617 N.E.2d at 200 (frequent substitute teacher was a pr ivate person); Nodar 462 So.2d at 808 (high school English teacher was not a public of ficial), Ellerbee v. Mills 422 S.E.2d 539, 540 (Ga. 1992) (high school principal is not a public official), cert. denied, 507 U.S. 1025 (1993); McCutcheon v. Moran, 425 N.E.2d 1130, 1131 (Ill. App. 1981) (public school principal's relationship to conduct of government is too remote to justify public official designation). 97 Johnson, 827 F. Supp. at 1443. Thus, the court holds that public school principals criticized for their official conduct are public officials for purposes of defamation law. A contrary holding would stifle public debate about important local issues. Id. 98 See e.g., Grossman v. Smart, 807 F. Supp. 1404 (C.D. Ill. 1992) (holding that a vice chancellor of research and a professor of agriculture law were public official s while an assistant professor of law was not).
183 chancellor of research, who served as a grie vance officer as well, were public officials.99 In making such a decision, the judge ruled that one does not have to be at the top of the bureaucracy to have the authority necessary to impact government action.100 Along those lines, however, the court found that an assistant prof essor of law, who had no role in making decisions before or after his hiring at the University of Illinois, was not a public official.101 Thus, it seems members of a university faculty may not automati cally attain public official status.102 Members of law enforcement have often been considered public officials by the courts.103 The U.S. District Court for the District of Columb ia held a Secret Service agent charged with the protection of former president Gera ld Ford to be a public figure.104 Larry Buendorf sued National Public Radio after a newscaster erroneously imp lied that he was homosexual.105 Citing the Seventh Circuits decision in Meiners v. Moriarty,106 the district court ruled that Buendorf was a public official based on his authority to use force as a federal law enforcement officer.107 99 Id. at 1408. 100 Id. 101 Id. 102 See also Woodruff v. Ohman, 29 Fed. Appx. 337 (6th Cir. 2002) (holding that a post-doctoral research assistant was not a public official). Since a post -doctoral research assistant does not af fect the lives, liberty, and property of citizens, and since Woodruff did not control government affairs and was instead in one of the countless public positions that have little direct impact on citizens' lives, th e district court's determination that Woodruff was a public official is erroneous. Id. at 348. 103 See, e.g., Time, Inc. v. Pape, 401 U.S. 279, 284 (1971); St. Amant, 390 U.S. at 730; Henry v. Collins, 380 U.S. 356 (1965); Cibenko v. Worth Publishers, 510 F. Supp. 761, 765 (D. N.J. 1981); Dunlap v. Philadelphia Newspapers, Inc., 448 A.2d 6, 16 (Pa. Super. Ct. 1982). 104 See Buendorf v. National Public Radio, Inc., 822 F. Supp. 6 (D. D.C. 1993). 105 Id. at 7-9. 106 563 F.2d 34, (7th Cir. 1977) (holding that federal agents were public officials for defamation purposes). 107 Buendorf, 822 F. Supp at 10-11. Mr. Buendorf's qualifications and performance are of interest to the public in an important and special way-because his assigned duties could affect an individual's personal freedom. Id.
184 Municipal law enforcement officers have also been found to be public officials. The Tenth Circuit found a municipal policeman in a small Wyoming town to be a public official for the purposes of a defamation action.108 In Coughlin v. Westinghouse Broadcast & Cable, the Third Circuit ruled that a police officer in a majo r metropolitan area was a public figure for the purposes of a defamation action.109 The Philadelphia police officer sued a television station after it broadcast a segment implying that he had accept ed a bribe while showing clandestine video of him exiting an after-hours club wh ile on duty carrying an envelope.110 To support its ruling affirming the district courts finding that Coughlin was a public official, the appellate court referred specifically to the lower court ruling.111 Citing a string of cases, the district court held that police officers have consistently been found to be public officials because of their position of authority: The cop on the beat is the member of the depa rtment who is most vi sible to the public. He possesses both the authority and the ability to exercise force. Misuse of his authority can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss. The strong public interest in ensuring open discussion and criticism of hi s qualifications and job perfor mance warrant the conclusion that he is a public official.112 Using that reasoning, the Tenth Ci rcuit held that a retired FBI agent could be considered a public official.113 In Revell v. Hoffman, the former Associate Deputy Director of the FBI, who 108 See Gray v. Udevitz, 656 F.2d 588 (10th Cir. 1981). 109 780 F.2d 340 (1986). 110 Id. at 341. 111 Id. at 324. 112 Coughlin v. Westinghouse Broad. & Cable, 607 F. Supp. 377, 385-386 (E.D. Pa. 1985) (quoting Gray 656 F.2d, at 591). 113 The U.S. District Court for the Dist rict of Minnesota has also held that an FBI agent was a public official. See Price v. Viking Penguin, Inc., 676 F. Supp. 1501 (D. Minn. 1988) (holding that an FBI agent who sued a publisher for a book discussing the conduct of FBI agents in in vestigating the murder of Native Americans was a public official required to prove actual malice).
185 had spent 30 years with the agency, sued Da vid Hoffman, an author whose books contained statements about Revells employment with the agency.114 Looking to its 1981 decision in Gray v. Udevitz,115 the appellate court concluded that Revell re tained his status as a public official,116 noting: That the person defamed no longer holds the sa me position does not by itself strip him of his status as a public official for constitutional purposes. If the defamatory remarks relate to his conduct while he was a public official and the manner in which he performed his responsibilities is still a matte r of public interest, he remain s a public official within the meaning of New York Times.117 Thus, even a law enforcement officer no longer active in law enforcement maintains his public official status related to that employment fo r an undetermined amount of time so long as the matter remains in the publics interest. Similarly, in Hatfill v. New York Times Co., the U.S. District Court for the Eastern District of Virginia ruled that a former government em ployee who was now in the private sector could still be considered a public official with rega rd to activities associat ed with the government.118 Steven Hatfill, who had been employed in vari ous roles with the United States government and had an extensive knowledge on bioterror issues, sued the New York Times alleging a column implied that he was involved in the deadly 2001 anthrax mailings.119 Shortly before the anthrax mailings, Hatfills security clearance was revoked a nd he was terminated from his job at one of 114 309 F.3d 1228 (10th Cir. 2002). 115 656 F.2d 588 (10th Cir. 1981) (holding that a police officer in a town of 30,000 people was a public official). 116 Cf. Ryder v. Time, Inc., 557 F.2d 824 (D.C. Cir. 1976) (holding that a former public official and candidate for public office was no longer a public official for defamation purposes). It is true that plaintiff had been a public official for a time and had been a candidate for public o ffice. Yet these public activities had nothing to do with the reference to Richard Ryder in the essay and, in any case, those activities were no longer engaged in by plaintiff. Id. at 826. 117 Id at 1232-1233 (quoting Gray, 656 F.2d at 591). 118 2007 WL 404856 (E.D. Va. 2007). 119 Id. at *1-*3.
186 the top government contractors.120 He was then employed by Louisiana State University to work on a government-funded project.121 Relying on the notion that a pers on can be a public official if he has substantial responsibility for or control over the governm ent affairs, the judge reasoned that someone need not be an official government employee to be considered a public official.122 In making that decision, the court noted Ha tfills close connecti on to the government: Plaintiff's participation in government tr aining and decisionmaking placed him in a position of public trust. The pub lic had an independent interest in Plaintiff's qualifications and performance given the highly sensitive nature of his work and its importance to national defense.123 Even a civilian employee of the Armed Services has been considered a public official. In Rusack v. Harsha, the U.S. District Court for the Middle District of Pennsylvania ruled that a civilian employee who worked as a supervisory c ontract negotiator at a naval purchasing office in Mechanicsburg, Pennsylvania, was a public official.124 The judge reasoned that the plaintiff was in a position of public trust and authori zed to expend public funds, making him a public official: Assuming that plaintiff is not involved with the administra tion of the contracts, it is nevertheless evident that he is intimately i nvolved in the expenditures of public funds, a matter of great importance so that there is an interest in his qualific ations and performance beyond the interest which might be with any governmental employee.125 Further, the judge reasoned that such responsibility gave the pl aintiff significant control of the way government does business regardless of the fact that he was a civilian employee. As a result, 120 Id. at *3. 121 Id 122 Id. at *5 (quoting Baumback v. American Broad. Co., 1998 U.S. App. LEXIS 18770, at *13-14 (4th Cir. 1998). 123 Hatfill, 2007 WL 404856, at *5. 124 470 F. Supp. 285, 293 (M.D. Pa. 1978). 125 Id. at 298-299.
187 the court held Rusack to be a public offi cial required to prove actual malice under New York Times v. Sullivan.126 Public figures If a plaintiff is not found to be a public offi cial, he or she may qualify as a public figure. Even under this status, a plaintiff must still prove actual malice to succeed in a defamation action. Within the public figure cat egory, a number of lower courts have broken out subsections, including all-purpose public figure, limitedpurpose public figures and involuntary public figures. As a result many have enunciated tests to determine whic h category is best suited for a particular plaintiff. Those who do not meet the pub lic figure criteria would then be categorized as private plaintiff, who may or may not need to prove actual malice. First labeled by the Court in Gertz, the all-purpose public figure category that had been discussed in Curtis Publishing was designed for plaintiffs with widespread notoriety.127 There, the Court said that [s]ome occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.128 Since that time, many courts have mentioned allpurpose public figures, but few have f ound plaintiffs that fit the bill.129 One of the most substantial discussions of all-purpose public figures came in a case involving Johnny Carson and his wife.130 In Carson v. Alliance News Co., both Carson and his wife admitted they were public figures and Ca rsons brief describes him as a preeminent 126 Id. at 298. 127 Gertz, 418 U.S. at 345. 128 Id. 129 A July 26, 2007, Westlaw search of all-purpose public fi gure in the database containing all federal cases turned up 33 hits. The same search in the database containing a ll state cases turned up 66 cases that included the phrase. 130 See Carson v. Alliance News Co., 529 F.2d 206 (7th Cir. 1976).
188 entertainer and show business personality.131 The Seventh Circuit reiterated the Gertz dicta about all-purpose public figures.132 The appellate court further explained that because Carson had made his livelihood on television and enjoyed a worldwide reputation based on that work, he fit the Gertz definition of an all-purpose public figure.133 In the same year, the Second Circuit found j ournalist William Buckley Jr. to be an allpurpose public figure in his defama tion lawsuit against an author.134 Noting that Buckleys syndicated column ran three times per week in hu ndreds of U.S. newspaper, the Second Circuit reasoned that he was just the type of person for whom the Gertz court envisioned the all-purpose public figure category: He may fairly be described as perhaps the l eading advocate, idealogue [sic] or theoretician of conservative political beliefs and ideas. He is, in short, a public figure for all purposes and in the classic sense of the Supreme Court cases.135 Ruling that some of the authors book was de famatory and some was not, the Second Circuit reduced the punitive damages awarded to Buckley from $7,500 to $1,000. In 1998, the Ninth Circuit, in Newcombe v. Adolf Coors Co., was not required to determine whether the plaintiff, a former major league pitcher, was an all-purpose public figure136 for the purposes of his defamation suit against a beer company.137 However, in a footnote, the court 131 Id. at 210. 132 Id. at 209. 133 Id. at 209-210. 134 See Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976). 135 Id. at 886. 136 In Cepeda v. Cowles Magazines & Broadcasting, the Ninth Circuit, hearing a case involving major league player Orlando Cepeda, referred to him throughout as a pub lic figure. Although the court never called him an allpurpose public figure in this pre-Gertz decision, the court mentioned Such figures are, of course, numerous and include artists, athletes, business people, dilettantes, anyone who is famous or infamous because of who he is or what he has done. 392 F.2d 417, 419 (9th Cir 1968). 137 157 F.3d 686, 695 (9th Cir. 1998).
189 stated that there was a strong argument [he] is subject to the more rigorous constitutional standard because he is an all-purpos e public figure based on his baseball fame.138 But because there was not evidence to prove defamati on even if he were categorized as a private person, the appellate court did not decide the issue.139 In a number of cases, the courts have determ ined that a plaintiff who does not have the celebrity status and notoriety to qualify as an all-purpose public figure may be considered a limited-purpose public figure instead. Often when lim ited-public figure status is conferred, it is based on an event or issue th at captures the public s attention and creates discussion. For example, the children of Julius and Ethel Rose nberg sued the publishe r of a book about their parents trial, claiming statements in the book defamed them.140 In Meerpol v. Nizer, the Second U.S. Circuit Court of Appeals ru led that the Rosenbergs childr en were public figures with respect to their defamation action against a publisher. The appellate court agreed with the district courts findings that the trial of the Rosenberg s had captured the publics attention, propelling the Rosenbergs and their children into the public spotlight.141 As a result, the plaintiffs were required as public figures to show actual mali ce in order to succeed against the publishers. In Waldbaum v. Fairchild Publications,142 the U.S. Court of Appeals for the D.C. Circuit fleshed out a test used to determine if a plain tiff is a limited-purpose publ ic figure after deciding that. Eric Waldbaum, president and CEO of Gree nbelt Consumer Services, did not rise to all138 Id. 139 Id. 140 See Meerpol v. Nizer, 560 F.2d 1061 (2d Cir. 1977). 141 Id. at 1066. In the course of extensive public debate revolving about the Rosenberg trial appellants were cast into the limelight and became public figures under the Gertz standards. Id. 142 627 F.2d 1287 (D.C. Cir. 1980) (holding that the well-known operator of a large consumer cooperative was a limited-purpose public figure for defamation purposes).
190 purpose status. Waldbaum sued after a Fa irchild Publications trade journal, Supermarket News ran an article about his ouster.143 The appellate court quickly determined that Waldbaum was not an all-purpose public figure, give n that he was not a celebrity, whose na me was a household word, whose ideas and actions the public in fact follows with great interest.144 Instead, noting that few would meet such an all-purpose test, the court went on to di scuss whether he would constitute a limited-purpose public figure, which the court defined as: a person [who] is attempting to have, or real istically can be expected to have, a major impact on the resolution of a specific public di spute that has foreseeable and substantial ramifications for persons beyond its immediate participants.145 To determine whether a plaintiff would then be considered a limited-purpose public figure, the Waldbaum court established a three-part test.146 First, the court isolated the purported public controversy in which th e plaintiff was involved.147 Such a controversy must not be contrived, but should be a major issue of public concern in wh ich the plaintiff is a significant stakeholder.148 The mere fact that an issue received media cove rage is not enough, standing alone, to create such a controversy.149 Such a determination can be made by judging whether members of the public were actually discussing the purported controversy: 143 Id. at 1290. 144 Id. at 1292. 145 Id. 146 See e.g., Avins v. White, 627 F.2d. 637 (3d Cir. 1980) (holding that a law school dean was a limited-purpose public figure in the context of law school accreditation); 147 Id. at 1296. 148 Id. A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way. Id. 149 Id.
191 If the issue was being debated publicly a nd if it had foreseeable and substantial ramifications for nonparticipants it was a public controversy.150 After ascertaining the extent of the controversy, the court must focus on the plaintiffs role in such a controversy to determine whether he qualifies as a limite d-purpose public figure.151 Further, the court must consider the plaintiffs role in the controversy and whether he has affected its outcome: Those who attempt to affect th e result of a particular cont roversy have assumed the risk that the press, in covering the controversy, will examine the major participants with a critical eye.152 Past conduct, press coverage and public reaction can a ll be used to evaluate the plaintiffs role in a public controversy.153 If the defamation relates to th e controversy, then it merits the New York Times protection. If not, the plaintif f qualifies as a private person. While hearing a case involving a once-prominent couple a fo rmer singer and professional athlete who had stepped out of the publics eye, the Fifth Circ uit had to decide whether the husband and wife were all-purpose or limited-purpose public figures.154 Anita Brewer filed suit after the Memphis Commercial Appeal published a People item in the paper implying that Brewer, who had once dated Elvis Presley, stopped in at his last show for a reunion of sorts.155 The item went on to say that Elvis had recently filed for divorce and that Anita Brewer was divorced from her football star husband Johnny Brewer.156 Relying on Gertz, the Fifth Circuit 150 Id. at 1297. 151 Id. 152 Id. at 1298. 153 Id. at 1297. 154 See Brewer v. Memphis Publg Co., 626 F.2d 1238 (5th Cir. 1980) (holding that former singer who maintained celebrity relationship with Elvis Presley and then went on to marry NFL star was a public figure). 155 Id. at 1240. 156 Id.
192 concluded that, at the very least, the Brewers had been public figures at some point.157 The tougher question, the Court acknowledged was whether they retained that public figure status: We therefore focus instead on plaintiffs' ac tions in seeking publicity or voluntarily engaging in activities that necessarily involve the risk of increased exposure and injury to reputation.158 In doing so, the appellate court no ted that both Anita and Johnny Brewer made their livings in fields that required them to be in the s potlight, appearing before the media and public audiences.159 Further, the court reasone d, the article pertained to Anitas former and possibly current relationship with Elvi s Presley, which had advanced her career and promoted her celebrity status in the beginning.160 As a result, the appellate court determined Anita Brewer remained a public figure, at l east as the article applied to the basis of her former fame.161 But, noting that the couple had never acquired the pervasive notoriety of someone like Johnny Carson, the court concluded that neither Anita nor Johnny Brewer was an all-purpose public figure.162 Like the Third Circuit, the Fourth Circuit developed a test to pr ovide guidance on public figure determinations.163 This five-part test was originated in Fitzgerald v. Penthouse 157 Id. at 1253. The evidence in this case shows that both plaintiffs at one time or another vigorously and successfully sought the public's attenti on or gained notoriety for their own ach ievements. Both achieved pervasive fame or notoriety, at least regionally; whether it was suc h pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts is a more difficult question. Id. 158 Id. at 1254. 159 Id. 160 Id. at 1257. It might be that during th e active public figure period a wide r range of articles, including those only peripherally related to the basis of the public figure's fame, are protected by the malice standard and that the passage of time or intentional retreat narrows the range of articles so protected to those directly related to the basis for fame. Id. 161 Id. at 1257-1258. 162 Id. at 1251. The Brewers power and influence never were as pervasive [as Johnny Carsons]. Id. 163 See, e.g., Reuber v. Food Chemical News, Inc., 925 F.2d 703 (4th Cir. 1991) (using the Fitzgerald factors to determine that a research scientist who blew the whis tle on the potential carcinogenicity of malathion, an
193 International.164 The plaintiff sued after the magazine ra n an article detailing his role in the militarys use of trained dolphins.165 To determine that Fitzgerald qualified as a limited-purpose public figure, the appellate court looked at five factors: (1) the plaintiff had access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominen ce in a public controvers y; (3) the plaintiff sought to influence the resolution or outcom e of the controversy; (4) the controversy existed prior to the publication of the defamatory statements; and (5) the plaintiff retained public figure status at the time of the alleged defamation.166 When applying the test to Fitzgerald, the appe llate court found he cl early met the standard enunciated. First, the national press had covered th e militarys use of dolphins in Vietnam for at least two years.167 Next the plaintiff had lectured publicly on the topic, written articles and even appeared on national television programs.168 Because Fitzgerald sought to capitalize financially on this knowledge, the court found that he had thru st himself into the controversy, which existed before and lasted long afte r the publication by Penthouse.169 Even after the Penthouse article, Fitzgeralds opinion was still s ought out on the topic, which added to his public figure status.170 In 1980, the Sixth Circuit was also trying to decide how to dete rmine if a plaintiff had risen to the level of a lim ited-purpose public figure.171 In Street v. National Broadcasting Co., the insecticide); Jenoff v. Hearst Corp., 644 F.2d. 1004 (4th Cir. 1981) (using similar factors to determine that a police undercover informant was a private figure and had not obtained even limited-purpose public figure status). 164 691 F.2d 666 (4th Cir. 1982). 165 Id. at 668. 166 Id. 167 Id. at 669. 168 Id. 169 Id. 170 Id. 171 See Street v. National Broad. Co., 645 F.2d 1227 (6th Cir. 1980) (holding that the primary prosecution witness from a decades-old rape trial was a limited-purpose public figure).
194 appellate court attempted to determine whet her a public controversy existed during the Scottsboro rape trial.172 To do so, the court looked at whethe r the trial was the focus of major debate and generated widespread press and attracted public attention for several years.173 After determining that the event was a public cont roversy, the court examined the plaintiffs role in the controversy. Because the plaintiff was the so le witness in the trial of nine black youths, the court determined she was a prominent figure in the controversy.174 Noting that the media devoured the trial, longing for in terviews with the plaintiff, the court concluded she had the necessary access to the media.175 However, the court struggled w ith the notion that she had not voluntarily injected hersel f into the controversy.176 Given that the vol untariness hinged on whether her accusations of rape were truthful, the court determined it would normally be appropriate to leave the volunt ariness prong out of its inquiry.177 However, the court found that the plaintiff spoke freely with the media and ag gressively promoted her version of the case outside of her actual court room testimony.178 Even though the plaintiff was a public figure at the time, the Street court had to decide whether she continued to be a limited-purpose pub lic figure years after the trial. The court, 172 Id. at 1234. 173 Id. 174 Id. 175 Id. 176 Id. 177 Id. at 1235. If there were no ev idence of voluntariness other than that turning on the issue of truth, we would not consider the fact of voluntariness. In such a case, the other factors prominence an d access to media alone would determine public figure status. But in this case, there is evidence of voluntariness not bound up with the issue of truth. Id. 178 Id. In the context of a widely-reported, intense public controversy concerning the fairness of our criminal justice system, plaintiff was a public figure under Gertz because she played a major role had effective access to the media and encouraged public interest in herself. Id.
195 noting that Wolston left the question open, held that on ce a person becomes a public figure on a matter, she remained a public figure with regard to that matter.179 Citing Meerpol and Brewer the Sixth Circuit noted broad support for this notion that a person reta ined their earlier-found status despite the passage of time.180 As a result, the Scottsboro plaintiff would have to prove actual malice to recover against NBC, despite the f act that 40 years had passed since the original rape trial. Courts have gone as far as to consid er companies to be public figures. In Schiavone Construction Co. v. Time, Inc., the Third Circuit ruled that a construction company and its controlling individual were public figures in a defamation action against Time magazine.181 The suit was filed after the magazine reported that the name Schiavone was found in FBI documents about missing labor leader Jimm y Hoffa, who had ties to organized crime.182 The appellate court noted that Schiavone and the c onstruction company invited public figure status by seeking out the press and actively part icipating in the controversy that led Time to write the story in question: Schiavone thrust himself into the cont roversy surrounding Donovan and his company by letter campaigns and his active investigati on into the private lives of the committee members investigating Donovan183 As a result, the appellate court found both the company and Schiavone to have obtained limitedpurpose public figure status as it related to the Jimmy Hoffa/Raymond Donovan incident. 179 Id. 180 Id. 181 847 F.2d 1069 (3d Cir. 1988). 182 Id. at 1072. 183 Id. at 1079.
196 The final category of public figure plaintiff envisioned in Gertz was the involuntary public figure, which the Gertz court said must be exceedingly rare.184 The D.C. Circuit found just such an instance in Dameron v. Washington Magazine, Inc.185 Merle Dameron, an air traffic controller, sued Washington Magazine after it published an article detailing the crash of Flight 90, which occurred while he was the only controll er on duty at Washington Dulles International Airport.186 Although the appellate court agreed with the district court that Dameron had not injected himself into the controversy, the judge s noted that there were additional ways for a plaintiff to become a public figure. Persons can become involved in public controversies and affairs without their consent or will. Air-contro ller Dameron, who had the misfortune to have a tragedy occur on his watch, is such a person.187 The court turned back to the three-part test established in Waldbaum an opinion in which the D.C. Circuit found Waldbaum to be a limitedpurpose public figure, to determine Damerons stat us. First, it acknowledged that the Flight 90 crash was a public controversy.188 Then, it modified the second prong of the Waldbaum test by taking into account that a pl aintiffs action may involuntar ily embroil him in a public controversy.189 Turning to Gertz the appellate court notes, Never theless, the Supreme Court has recognized that it is possible, although diffi cult and rare, to become a limited-purpose public 184 Gertz, 418 U.S. at 345. 185 779 F.2d 736 (D.C. Cir. 1985) (holding that an air traffic controller was a limited-purpose public figure for a defamation case arising from an accident that occurred while he was working). 186 Id. at 738. Dameron asserts that The Washingtonian's statement that he was partly to blame for the death of 92 people libels him, that the statement is false, brings him into disrepute, and has caused him humiliation and mental anguish. Id. 187 Id. at 741. 188 Id. 189 Id.
197 figure involuntarily. 190 Finally, the court concluded that the defamation at issue was clearly connected to the public controversy, making hi m one of a very limited number of involuntary limited-purpose public figures.191 In 2001, the Georgia Court of Appeals ruled that a security guard presen t at the Centennial Olympic Park bombing was an involuntar y public figure in his case against the Atlanta JournalConstitution.192 Jewell sued the newspaper after it ran an article naming him as a suspect in the case.193 Initially dubbed a hero for saving lives, Je well then became the focus of the federal inquiry in the 1996 blast.194 The trial court found Jewell wa s a limited-purpose public figure based on his extensive role in the media regarding the bombing: During interviews, he discussed his participa tion in the events, his previous training, the training and reactions of ot her law enforcement personnel on the scene, and urged the public to show the bomber that this t ype of activity woul d not be tolerated.195 Citing Dameron, the Georgia appellate court ruled that at the very least, Jewell was an involuntary public figure even if he did not rise to the level of limited-purpose public figure: Whether he liked it or not, Jewell became a cen tral figure in the specific public controversy with respect to which he was allegedly de famed: the controversy over park safety.196 190 Id. at 741-742. 191 Id. at 742. Paradoxically, the magazine article never mentions Dameron's name or other identifying characteristics. If Dameron had not been previously linked with accounts of the tragedy, no magazine reader could tie the alleged defamation to Dameron. Indeed, it was partly because of the defendant's public notoriety that he was identifiable at all from the oblique reference in The Washingtonian. Id. 192 See Jewell 555 S.E.2d at 175. 193 Id. at 178. 194 Id. 195 Id. at 185. 196 Id. at 186. Jewell was an ordinary citizen who was unknown to the public before the Olympic Park bombing, never sought to capitalize on the fame he achieved through his actions in events surrounding the bombing, and never acquired any notoriety apart from the bo mbing and the investigation which followed. However, there is no question that Jewell played a central, albeit possibly involuntary, role in the controversy over Olympic Park safety. Id.
198 Private persons Although courts frequently find defamation plai ntiffs to be public figures, there are instances where individual and co rporate plaintiffs have been f ound to be private persons. As a result, these plaintiffs often need only show negligence and the defendants cannot rely on the constitutional protections of New York Times v. Sullivan. Plaintiffs found to be private persons often fail to meet one, two or even all of the cr iteria needed to be considered limited-purpose public figures. A prime example of a defendant, initially co nsidered to be a public figure but then determined to be a private person, ar ose in the Fourth Circuit case of Jenoff v. Hearst Corp.197 In the case, the Fourth Circuit decided that an unde rcover police informant, held by the lower courts to be either a public official or a public figure, had been improperly classified.198 Citing both his lack of formal government employment along with the fact that he did not occupy a position that would invite public scrutiny, the court held he was not a public official.199 However, using a test similar to the one established in Fitzgerald, the appellate court also rule d that he was not a public figure limited-purpose or otherwise.200 Jenoff, they noted, had no sp ecial access to the media, nor did he seek attention from his undercover pursuits.201 Further, the court added that Jenoff did not seek, through his undercover work, to inf luence the resolution of any public issue.202 As a result, the appellate court held he rightfully should be classified as a private person. 197 Jenoff, 644 F.2d. at 1004. 198 Id. at 1006. 199 Id. 200 Id. at 1007. 201 Id. 202 Id.
199 Even business managers and owners have been held to be private persons in some cases. For example, the publisher of a business newsle tter was held to be a private figure by the Eleventh Circuit despite his prom inence in the business community.203 Likening the case to a classic Gertz situation, the appellate court concluded in Straw v. Revel that despite J.F. Straws notoriety among business circles as the publisher of Business Opportunity Digest this was not enough to bring him within the ambit of a public figure.204 In fact, his notoriety was quite limited given the circulation of his magazine was small: He is well known in some circles, and publis hes in a particular field; but not every publisher is automatically a public figure by virtue of his access to a printing press.205 Additionally, the court noted that simply repor ting something in his publication was not enough to say that Straw injected hi mself into a public controversy.206 As a result, the appellate court ruled the trial court had properl y categorized him as a private plaintiff instead of a limitedpurpose public figure.207 Corporations have been found to be priv ate persons under defamation law in some instances. In Bruno & Stillman Inc. v. Globe Newspaper Co. ,208 the First Circuit was asked to determine whether a Delaware corporation enga ged in the manufacture of commercial fishing vessels was rightfully categorized as a public figure for the pur poses of a defamation lawsuit. Bruno & Stillman sued after the Boston Globe published a series of articles detailing defects in 203 See Straw v. Revel, 813 F.2d 356 (11th Cir. 1987). 204 Id. at 361. 205 Id. 206 Id. 207 Id. 208 633 F.2d 583 (1st Cir. 1980).
200 the plaintiffs crafts.209 The appellate court found Bruno & Stil lman was not a public figure, and it declined to adopt a rule that would automati cally treat corporations as public figures. The appellate court noted that it coul d not find evidence of any public co ntroversy with regard to the faulty boats.210 Further, the court found that Bruno & St illman had done nothing to inject the corporation into any such controversy or limelight.211 The court contrasted the actions of Bruno & Stillman with those of other companies found to be public figures and noted the dramatic difference.212 As a result, the appellate court ru led that, without more evidence, Bruno & Stillman could not be co nsidered a public figure.213 Similarly, in U.S. Healthcare Inc. v. Blue Cross of Greater Philadelphia, the Third Circuit refused to consider either party a limited-purpose public figure.214 The lawsuit arose over defamatory speech contained within a comparat ive advertising war between the two companies initiated after Blue Cross lost some clients to U.S. Healthcare.215 The appellate court refused to consider either party a limitedpurpose public figure, noting that such commercial speech likely would not be chilled by the negligence standa rd and was not the type of speech that New York Times v. Sullivan sought to protect: The express analysis in Gertz is not helpful in the context of a comparative advertising war. Most products can be linke d to a public issue. And most advertisers including both claimants here seek out the media. Thus, it will always be true that such advertisers have 209 Id. at 585. 210 Id. at 591. 211 Id. 212 Id. at 592. This record is to be contrasted with the co ncentrated advertising blitz which the Third Circuit held invited public attention, comment, and criticism in Steaks Unlimited. Id. ( quoting Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 274 (3d Cir. 1980)). 213 Bruno, 633 F.2d at 592. 214 898 F.2d 914 (3d Cir. 1990). 215 Id. at 917-920.
201 voluntarily placed themselves in the public eye. It will be equally true that such advertisers have access to the media.216 Instead, the appellate court concluded the speech was not worthy of the heightened constitutional protections provided under actual malice, and declared both corpora tions to be private figures for the purpose of the defamation action.217 The appellate court provided three reasons for providing less protection to the speech. First, it said comm ercial speech does not make the same level of contribution to the exposition of ideas as political and social speech.218 Second, it said because of their economic self-interest, commercial speakers are less likely to be chilled if they are not protected by the actual malice standard.219 Finally, because of their high level of knowledge about their market and their consumers, commerci al speakers are better e quipped to evaluate the truthfulness of any speech that enters the market.220 Courts have found plaintiffs to be private persons in situations in which the plaintiff might appear to be a limited-purpose publ ic figure. Usually, however, this is because at least one prong of the public-figure test that the court applied ha d not been fulfilled, leaving the plaintiff free to pursue the defamation action as a private person. As a result, defenda nts are typically not allowed to rely on the protections of New York Times v. Sullivan, and plaintiffs oftentimes need only prove negligence to succeed. The Courts Look at Plaintiff Status: Online Defamation To make determinations of plaintiff status in online defamation cases, the most frequent focus thus far has been the plai ntiffs use of the media. A hand ful of courts both federal and 216 Id. at 939. 217 Id. 218 Id. at 934. 219 Id. 220 Id.
202 state have examined the role of Internet usage in online defamation cases when deciding whether a plaintiff is a private person or a lim ited-purpose public figure. For the most part, the courts have relied on the Waldbaum test221 with some minor modifications to account for the importance of any Internet communicat ions that occurred in the cases. In 2002, the Georgia Supreme Court addressed pl aintiff status in an online defamation case involving the director of a solid -waste management authority..222 In Mathis v. Cannon, the Court considered whether he was a public figure for th e purposes of a defamation action arising out of comments posted on an electronic message board.223 The state supreme court, referencing the federal appellate court decision in Waldbaum applied the same test for plaintiff status used in traditional print and broadcast defamation cases.224 Thus, it focused its inquiry on defining the public controversy, uncovering the plaintiffs ro le in the identified controversy and deciding whether the communication is relevant to the plaintiffs role in the controversy.225 The state supreme court, noting the public controversy surrounding the operation of the solid-waste and recycling facilities, cited three ways in which the direct or was involved: First, [Cannon] was a crucial actor in helpi ng the authority obtain the commitments from other county and city governments in sout h Georgia to provide solid waste for the authority's facility. Second, Cannon represented the authority in a variety of ways that far exceeded the terms of TransWaste's contract to collect and haul solid waste to Crisp County. Third, Cannon precipitated the fina ncial crisis in November 1999 by filing a 221 See infra 222 See Mathis v. Cannon, 573 S.E.2d 376 (Ga. 2002). 223 Id. at 377-378. 224 Id. at 381. Under this analysis, a court must isolate the public controversy, examine the plaintiff's involvement in the controversy, and determine whether the alleged defa mation was germane to the plaintiff's participation in the controversy. Id. ( quoting Jewell 555 S.E.2d at 175 (adopting the test used in Waldbaum, 627 F.2d at 1296-1298)). 225 Mathis, 573 S.E.2d at 381.
203 lawsuit against the authority and then tempor arily halting deliveries to the solid waste recovery plant.226 Observing that the determining factor is not th e mass interest in a specific controversy, but is instead whether such a controversy generates d iscussion, debate and dissent in the relevant community, the supreme court found the comment s posted by the defendant to be germane to the plaintiffs role in the solid-waste controversy.227 Because all three prongs of the Waldbaum test were met, the supreme court found the plai ntiff to be a limited-purpose public figure for the purposes of the online defamation case.228 Three years after Mathis, the Georgia Court of Appeals addressed the same issue in Atlanta Humane Society v. Mills.229 After Kathi Mills posted comment s on an Internet bulletin board about the Atlanta Humane Societys animal c ontrol work in Fulton County, Georgia, the AHS and its director, Bill Garret t, filed suit for defamation.230 The Georgia Court of Appeals held that Garrett was properly classified as a limited-purpose public figure.231 In making such a determination, the court noted that Garrett had gi ven many interviews and issued numerous press releases pertaining to AHS work in Fulton County.232 Further, the court noted, he specifically spoke to an Atlanta TV station th at was doing an investigative piece that led to the public outcry surrounding AHS work.233 In addition, he sent a letter to c ounty government officials to voice 226 Id. at 382. 227 Id. 228 Id. at 383. 229 See 618 S.E.2d 18 (Ga. Ct. App. 2005). 230 Id. at 23. 231 Id. at 24. 232 Id. at 23. 233 Id.
204 support for AHS.234 Even if those actions alone would not be enough to establish that Garrett voluntarily participated in influe ncing the outcome of a public c ontroversy, the court noted that he may be one of the limited number of plainti ffs rightly classified as involuntary public figures.235 Citing Atlanta Journal-Constitution v. Jewell,236 the court said his position as director may place him in a role that would be expected to affect the outcome of a controversy: [O]ccasionally, someone is caught up in the cont roversy involuntarily and, against his will, assumes a prominent position in its outcome. Un less he rejects any role in the debate, he too has invited comment re lating to the issue at hand.237 As a result, the court while deciding an online defa mation case, turned to one of the key elements used to determine plaintiff status in print and broadcast defamation cases: access to the media. Not long after the second online defamation case in Georgia addressed th e issue of plaintiff status, a case arose in California as well. In Ampex Corporation v. Cargle,238 a California appellate court ruled that Ampe x, a corporation that was suing a former employee for posting defamatory statements online, was a limited-purpose public figure.239 In making this determination, the court noted th at the fact there were a numbe r of postings on Yahoo! Message boards regarding Ampexs decision to discontinue one of its technology projects was evidence of a public controversy likely to impact nonparticipants.240 Ampex, the court no ted, was a publicly traded company with more than 59,000 outstanding sh ares of stock, the pri ces of which would be affected by Ampexs decision to discontinue on e of its projects. As evidence that Ampex 234 Id. 235 Id. 236 See infra 237 Id. (quoting Jewell, 555 S.E.2d at 193). 238 27 Cal.Rptr.3d 863 (Cal. App. 4th, 2005). 239 Id. 240 Id. at 870.
205 voluntarily sought to influence public opinion abou t its technology project, the court pointed to the press releases and letters, which Ampex posted on its Web site touting the pot ential of the project for the companys future.241 When determining that the alleged defamatory comment pertained to the controversy, the court reasoned that the former employees comments provided a contrast to those of Ampex, point ing to management issues with the project as opposed to trouble in the technology market.242 All of those factors, including the companys use of its own Web site to communicate,243 provided enough evidence to suppor t the finding that Ampex was a limited-purpose public figure for the purpose of its online defamation case against Cargle, the former employee.244 The Tennessee Court of Appeals heard a si milar case involving a businessman who modified Jet Skis.245 In Hibdon v. Grabowski, the businessman sued for defamation after Grabowski, a personal watercraft user, made statements on an Internet news group and a competitors Web site questioning whether Hibdons watercraft performed as he had claimed.246 In ruling that Hibdon was a limited-purpose public figure, the court noted that he had availed himself of the media resources available by boa sting on a Internet news group, agreeing to interviews for magazine articles (including a cover story) about his Jet Skis and fielding 241 Id 242 Id. 243 See also Bieter v. Fetzer, 2005 WL 89484 (Minn. Ct. App.). In Bieter, the Minnesota Court of Appeals noted, in ruling that plaintiff Bieter was a limited-purpose public figure, that he had started an Internet chatroom dedicated to the refutation of defendant Fetzers speech. Further, the court opined that he presented his experience as a prosecutor in a manner that cast him as an expert to discredit Fetzers communications. Id. at 3. 244 Id. 245 See Hibdon v. Grabowski, 195 S.W.3d 48 (Tenn. Ct. App. 2005). 246 Id. at 55.
206 worldwide phone inquiries about his products.247 The court found that a public controversy existed as to Hibdons Jet Ski modifications aris ing out of his Internet news group posting well before the defamatory statements were made.248 One of the reasons the court cited for finding the issue was a public controversy was the wide re ach of the Internet news group, which allowed people who were not direct participants to obtain information about the discussion: The dispute as to the accuracy of Hibdon's cl aimed successes with m odifying jet skis to achieve record-breaking speeds received public attention beca use its ramifications would be felt by persons who are not di rect participants, those person s being individuals in the jet ski modification business, as we ll as recreational jet ski enthusiasts and purchasers of jet skis. This group includes individuals with in the United States and many foreign countries.249 The court further found that Hibdons extensive use of the Internet and a magazine to counter the alleged defamatory statements, which occurred as a result of the controversy surrounding Hibdon, placed him into the category of those speak ers who voluntarily inject themselves into a public controversy with the in tent of shaping the outcome.250 Thus, the very nature of the discussion, arising out of the Inte rnet news groups, helped to pr opel Hibdon to his status as a limited-purpose public figure in the eyes of the court. In the same year, the U.S. District Court for the District of Columbia ruled on a motion for summary judgment in which the defendants as serted the plaintiffs were public figures.251 In OAO Alfa Bank v. Center for Public Integrity, the Center for Public Inte grity argued that OAO Alfa Bank should be considered a public figure, in wh ich case it would be required to prove actual 247 Id. at 59. 248 Id. 249 Id. at 60. 250 Id. at 62. 251 See OAO Alfa Bank v. Center for Public Integrity, 387 F. Supp.2d 20 (D. D.C. 2005).
207 malice in its online defamation lawsuit.252 The case stemmed from an online report published by the Center for Public Integrity that allege d the plaintiffs and OAO Alfa Bank had ties to organized crime and the drug trade.253 Relying, like the state courts in their respective cases, on the D.C. Circuits Waldbaum decision the federal district court found the plaintiffs to be limitedpurpose public figures.254 In its decision, the D.C. trial court noted that Waldbaum requires that a limited-purpose public figure have the necessary degree of not oriety ... where the defamation was published.255 In this case, the defamatory statements were published on the Internet, and the court reasoned: [t]he audience for the CPI article is not confined to the United States merely because that is where the authors of the piece choose to wor k, and it is not immediately apparent why the limited public figure inquiry should be so confined.256 Further, the court looked at the plaintiffs acce ss to media on a worldwid e scale to bolster its assertion that the plaintiffs were limited-purpose public figures.257 In its analysis, the district court appears to be recognizing special circ umstances created by the use of the Internet. By 2006, federal courts, as well as state co urts, seemed to be using the traditional Waldbaum test of access to the media, with some m odifications to examine the role of the Internet, to determine plaintiff st atus in online defamation cases. In World Wide Association of Specialty Programs v. Pure Inc.,258 the Tenth Circuit relied on a modified Waldbaum analysis to 252 Id. at 42. 253 Id. at 43-46. 254 Id. at 47. Simply put, [the plaintiffs] are players on the world stage; hence, they are limited public figures not only in Russia, but in the United States as well. Id. 255 Id. ( quoting Waldbaum, 627 F.2d at 1295 n. 22). 256 Id. 257 Id. 258 See 450 F.3d 1132 (10th Cir. 2006).
208 uphold a district court decision. In the case, it ruled that an association of residential treatment programs for at-risk teens was a limited-purpose public figure in a defamation case that stemmed from comments pseudonymously posted on the Internet by a competitor.259 The court, identifying the public controversy as how to deal with troubled teens, noted that the plaintiffs employees had been interviewed numerous times by large-scale, national media entities for the purpose of commenting on the issue.260 Further, the plaintiffs bus iness was designed to promote the techniques used by its member schools as a means of treating troubled teens, which placed World Wide squarely in the middle of the controversy.261 The court repeatedly mentions World Wides use of the media to promote its client s as a justification for its limited-purpose public figure status in much the same way that the Geor gia and Tennessee courts used that rationale in earlier online defamation cases. Conclusion The Supreme Court has created a complex fram ework for determining plaintiff status, a decision that determines whether a plaintiff will be required to prove actual malice or negligence to succeed in defamation action. The Supreme Court has outlined three major categories of plaintiffs in defamation actions: public officials, public figures and priv ate persons. It has gone on to discuss each category in its jurisprudence. Guided by the Supreme Courts general discussion in Sullivan that judges, government officials and elected commissioners should be cla ssified as public officials for the purpose of 259 Id. at 1137. 260 Id. 261 Id. As the marketing arm for the various programs that it promotes, World Wide chose to place itself in the national spotlight advocating this method. Id.
209 defamation actions,262 the lower courts have gone on to address the issu e dealing with government employees at all levels.263 As a result, the category of public official has grown somewhat based on determination by lower courts that certain plaintiffs including law enforcement officials and public school teachers in many instances have taken on the role of public officials and therefore shoul d be subject to the actual malice standard. As a general rule, the courts have relied on the defi nition of a public official from Rosenblatt v. Baer, in which the Court said the: public official designation applies at the very least to those among the hierarchy of government employees who have, or appear to th e public to have, substa ntial responsibility for or control over the conduc t of governmental affairs.264 Law enforcement officers and teachers have been added to that list by some courts that have cited their authority and the public s interest in ensuring their qua lifications and job performance. If a plaintiff is not found to be a public offi cial, he or she may qualify as a public figure. Even under this status, a plaintiff must still prove actual malice to succeed in a defamation action. Within the public figure cat egory, a number of lower courts have broken out subsections, including all-purpose public figures, limited-pur pose public figures and involuntary public figures. First enunciated by the Court in Gertz, the all-purpose public fi gure category was designed for plaintiffs with widespread notoriety.265 There, the Court said that [s]ome occupy positions 262 Sullivan, 376 U.S. at 273. If judges are to be treated as m en of fortitude, able to thrive in a hardy climate, surely the same must be true of other government officials, such as elected city commissioners. Id. ( quoting Craig v. Harney, 331 U.S. 367, 376 (1947). 263 See, e.g., Varanese v. Gall, 518 N.E.2d at 1177. (applying the actual malice standard of New York Times Co. v. Sullivan to an Ohio public official 's state-law defamation claim); Sullivan 376 U.S. at 254 ( ruling that a municipal public official must prove actual mali ce to succeed in a defamation claim). 264 Id. at 1408 ( quoting Rosenblatt v. Baer, 383 U.S. at 85). 265 Gertz, 418 U.S. at 345.
210 of such persuasive power and influence that th ey are deemed public figures for all purposes.266 Since that time, many courts have mentioned all-purpose public figures, but few have found plaintiffs that fit the bill.267 As a rule, these plaintiffs have b een celebrities and sports figures. In a number of cases, the courts have determ ined that a plaintiff who does not have the notoriety to qualify as an al l-purpose public figure may be co nsidered a limited-purpose public figure instead. Often when limited-p ublic figure status is conferre d, it is based on an event or issue that captures the publics attention and creates discus sion. The predominant test to determine whether a plaintiff is a limited-purpose public figure is the Waldbaum test.268 It requires the court to isol ate the purported public controversy in which the plaintiff was involved and examine the plaintiffs role in such a contro versy to determine whether he has attempted to affect its outcome. The final category of public figure plaintiff envisioned in Gertz was the involuntary public figure, who the Gertz court said must be exceedingly rare.269 These are plaintiffs, the courts noted, that have become embroiled in a public controversy a plane crash or a bombing for example without voluntarily injecting themselves. Although courts frequently find defamation plai ntiffs to be public figures, there are instances where individual and co rporate plaintiffs have been f ound to be private persons. As a result, these plaintiffs often need only show negligence and the defendants cannot rely on the constitutional protections of New York Times v. Sullivan. Plaintiffs found to be private persons 266 Id. 267 A Westlaw search of all-purpose public figure in the database containing all federal cases turned up 33 hits. The same search in the database containing all stat e cases turned of 66 cases that included the phrase. 268 See e.g., Avins v. White, 627 F.2d at 637 (holding that a law school dean was a limited-purpose public figure in the context of law school accreditation); 269 Gertz, 418 U.S. at 345.
211 often fail to meet one, two or even all of the cr iteria needed to be considered limited-purpose public figures. To make determinations of plaintiff status in online defamation cases, the most frequent focus thus far has been the plai ntiffs use of the media. A hand ful of courts both federal and state have examined the role of Internet usage in online defamation cases when deciding whether a plaintiff is a private person or a lim ited-purpose public figure. For the most part, the courts have relied on the Waldbaum test with some minor modifications to account for the importance of any Internet communications that occurred in the cases. In some of these cases, the courts seem to imply that the plaintiffs ex tensive reliance on the Internet has pushed them into the public figure categories.
212 CHAPTER 6 DEFINING HARM The concept of harm plays an important role in defamation litigation. Courts may use harm to make several determinations cr itical to the litigation. First, th e evaluation of the level of harm may be used to determine whethe r the plaintiff actually has a cau se of action. Second, courts may look to level of harm to determine a plaintiffs ri ght to damages. In any sense, the courts must determine what harm occurred before such important decisions can be made. The Courts Look At Harm: Print and Broadcast Defamation The U.S. Supreme Court has addressed the de finition of harm on numerous occasions, and its jurisprudence constructs overa rching guidelines to provide dire ction for the lower courts in assessing damages. In its opini ons, the Court has examined harm in a variety of contexts, including as part of the plaintiffs prima facie case and as part of the evaluation of damages. Thus, the notions of harm discussed by the Supr eme Court provide the st arting point from which the lower courts begin their analysis. The U.S. Supreme Court has often said the prim ary interest behind the tort of defamation is the compensation of individuals whose reputat ions have been harmed by defamatory falsehoods.1 Justice Stewart enunciated this eloquently in Rosenblatt v. Baer, writing that allowing such compensation: reflects no more than our basic concept of th e essential dignity and worth of every human being a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our cons titutional system.2 1 See Gertz v. Welch, 418 U.S. 323, 341 (1974). 2 383 U.S. 78, 92 (1966) (Stewart, J., concurring).
213 The need for the state to provide protecti on for reputation runs throughout the Courts defamation jurisprudence, with the Court noting in Getz v. Welch that the truth rarely catches up with a lie.3 However, as the Courts defamation juri sprudence has matured, the justices have overlayed several constitutional hurdles through which defamation plaintiffs must climb on the common law requirements of damages.4 Common Law Damage Requirements At common law, damage resulting from a de famatory publication could be presumed.5 In these libel per se situations, the existence of injury is presumed from the fact of publication.6 Presumed damages allowed plaintiffs to be compensated for emotional harm that resulted from the injury to reputation. Such a view is represented in the Restatement (Second) of Torts.7 Libel not falling into the libel per se category libel s that were not considered defamatory on their face were labeled as libel per quod.8 The distinction between lib el per se and per quod is important because it has ramifications upon a pl aintiff's burden of pleading and proof on the issue of damages. Notably, when a plaintiff pleads and establishes libel per se, the plaintiff need not allege or prove any special damages, whic h would compensate the plaintiff for monetary loss. In fact, general damages are presumed a nd nominal damages are available in any event.9 Many states still allow plaintiffs to proceed in court without having to prove actual damages to 3 Gertz, 418 U.S. at 344 (n. 9). 4 See, e.g., Gertz v. Welch, 418 U.S., at 323; Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985). 5 See DAN B. DOBBS, LAW OF TORTS 422 (2000). 6 Gertz, 418 U.S. at 349. 7 See RESTATEMENT (SECOND) OF TORTS 569. 8 Blacks Law Dictionary defines libel per quod as Libel in which the defamatory meaning is not apparent from the statement on its face but rather must be proved from extrinsic circumstances. See BLACKS LAW DICTIONARY (8th ed. 2004). 9 See Shoemaker v. Community Action Org. of Scioto City, 2007 WL 2070365 13 (Ohio Ct. App.).
214 meet the common law damages requirement.10 In these states, certain types of defamatory statements those that are libelous per se are harmful on their face a nd the court will instruct the jury to presume that injury to reputation follo ws if the statement is found to be defamatory. To recover damages at common law, libel per quod plaintiffs were re quired to plead and prove special damages, which covered specific economic losses stemming from the defamation.11 Special damages, as defined by the Restatement ,12 cover the loss of something having economic or pecuniary value, which has been defined by the courts to include losses that are capable of being estimated in money.13 Except in a specific group of cases outlined by the Supreme Court in Gertz the common law damages rules still apply to defama tion lawsuits in most jurisdictions.14 For private plaintiffs suing over defamation that arises in the discussion of matters of pr ivate concern those plaintiffs covered by the Supreme Courts decision in Dun & Bradstreet v. Greenmoss Builders the common law damage rules guide the award of da mages. Thus, the Constitution does not impose any restrictions on damages in this category of cases.15 Courts relying on the common law approach to defamation often reason that it is too difficult in many defamation cases to prove re putational harm. A Maryland appellate court wrote, on requiring proof of injury to reputation, This a pproach, in our view, fails to respect the 10 See, e.g., Bentley v. Bunton, S.W.3d 561, 605 (Texas 2002); Hamilton v. Prewett, 860 N.E.2d 1234 (Ind. App. 2007) If the communication is defamatory per se, damages are presumed even without proof of actual harm to the plaintiffs reputation. Id. at 1243. 11 See RODNEY A. SMOLLA, LAW OF DEFAMATION 7.1 (2d ed. 2004). 12 See RESTATEMENT (SECOND) OF TORTS 575, cmt. b. 13 See Republic Tobacco Co. v. North Atlantic Trading Co., Inc., 381 F.3d 717 (7th Cir. 2004). 14 See DOBBS, supra note 5, at 422. 15 Dun & Bradstreet, 472 U.S. at 759-760.
215 centuries of human experience which led to a presumption of harm flowing from words actionable per se. One reason for that comm on law position was the difficulty a defamation plaintiff has in proving harm to reputation.16 State courts have established a variety of methods of proof through which plaintiffs can fulfill the common law damage requirements. Often, plaintiffs prove any of several types of harm: injury to business reput ation, injury to personal repu tation or pecuniary injury. Injury to business reputation Injury to business reputation comes up freque ntly as a means of proving damages. The Seventh Circuit dealt with such a case after a wood-burning stove dealer sued his supplier for omitting the dealers name from a list of dealerships.17 In the case, the court held that such an omission cannot form the basis for a defamation claim because it does not injure business reputation.18 Judge Richard Posner reasoned that although being left off a dealership list may in fact decrease the opportunity for sales, it is not enough to have impugned the reputation of the dealer: More is necessary than a diminution of transa ctional opportunities. In a business setting the imputation, to count as defamation, must ch arge dishonorable, uneth ical, unlawful, or unprofessional conduct.19 Implying that someone is not a dealer is not the same as tarnishing their business reputation through statements implying a lack of honesty, integrity or professionalism and does not, therefore, cause th e necessary harm. 16 Hearst Corp. v. Hughes, 466. A.2d 486, 495 (Md. 1983). 17 See Isaksen v. Vermont Castings, Inc., 825 F.2d 1158 (7th Cir. 1987). 18 Id. at 1166. 19 Id.
216 Several states laws allow damage awards unde r a theory of injury to business reputation for a broad assortment of harms. The First Ci rcuit, applying New Hampshire law, found that a doctor had adequately proven act ual injury by showing that a USA Today article had caused public outrage among the veterans he treated and his colleagues at the Ve terans Administration, prompted a campaign calling for his termination and lead to threats at both his workplace and his home.20 In a case in which an oil service company sued its competitor for defamation, the Fifth Circuit found the plaintiff had proven injury to business reputation ba sed on an advertising experts testimony that the company would re quire $650,000 in rehabilita tive advertising along with the testimony of the companys economist w ho said the oil services company would lose millions in profits due to the false report.21 Injury to personal reputation Plaintiffs can also recover damages by showi ng injury to personal reputation. Often, this includes plaintiffs proving that the defamatory statement lowered their reputation in the eye of the community, caused them personal humiliation or subjected them to scorn. Such is the case in New Mexico, where the courts re quire a showing of some type of harm, allowing recovery for harms to personal reputation cau sed by defamatory statements.22 Similarly, the Tenth Circuit, applying New Mexico law, held that a doctor wh ose privileges were revo ked at a local hospital could have suffered impairment of reputati on and standing in the community or personal humiliation as a result.23 20 875 F.2d 935, 948 (1st Cir. 1989). 21 Brown v. Petrolite Corp., 965 F.2d 38, 46 (5th Cir. 1992). 22 Newberry v. Allied Stores, Inc. 773 P.2d 1231, 1236 (N.M. 1989). 23 Brown v. Presbyterian Healthcare Services, 101 F.3d 1324, 1336 (10th Cir. 1996).
217 Pecuniary injury Several courts, applying Indiana law, have re fused to allow damages in defamation cases in which the plaintiff could prove numerous othe r types of harm, but could not show pecuniary injury. For a plaintiff to obtain damages on a defa mation claim in Indiana, he must be able to prove pecuniary injury even if other types of harm are present.24 For example, the Seventh Circuit has refused to allow damages in at least two Indiana cases in which the plaintiffs could not prove economic harm. In Grzelak v. Calumet Publishing Company the court upheld a motion to dismiss a defamation claim because the plaintiff had shown severe mental and emotional pain and agony but could not prove fiscal injury.25 Sixteen years later in Tacket v. Delco Remy Div. of General Motors Corp., the court held that the plaintiffs psychological harm was not sufficient to support the jurys award of damages.26 Thus, without a showing of financial injury stemming from a defamatory statement, the plaintiffs could not obtain damages. Under Massachusetts law, a plaintiff can rec over lost earnings resulting from a defamation claim.27 For example, the court awarded lost earni ngs after potential empl oyers testified they decided not to hire the plaintiff as a result of the defamatory statement.28 The courts have also rejected such claims when plaintiffs have provi ded no proof that they co uld not find comparable employment as a result of defamatory statements.29 This requirement stems in part, from 24 Stanley v. Kelley, 422 N.E.2d 663, 668 (Ind. Ct. App. 1981). 25 543 F.2d 579 (7th Cir.1975). 26 937 F.2d 1201 (1991). [W]e find Tackets evidence of psychological injury insufficient to demonstrate the special damages necessary to uphold the jurys award. Id. at 1208. 27 See Faulk v. Aware, Inc., 19 A.D.2d 464 (Mass. 1963). 28 Id. at 470. 29 See Tosti v. Ayik, 394 Mass. 482 (Mass. 1985).
218 Massachusetts requirement that plaintiffs pr ove special damages in order to recover for monetary losses in a defamation claim. Constitutional Damage Requirements As the Supreme Court began to constitutiona lize the law of defamation in the 1960s, its rulings would overlay a set of constitutional requirements for damage s on top of the common law requirements.30 The Court has visited the issue of damages on two occasions in which it began to construct the constitutional restrictions upon damage awards. The most notable and likely complex discussions of the subject come in Gertz v. Welch and Dun & Bradstreet v. Greenmoss Builders. In Gertz the Court explicitly discussed the common law of defamations failure to require evidence of loss or injury.31 In these situations, the plaintiff had not been required to plead and prove harm or injury; inst ead, it was merely presumed from the publication of a defamatory statement: The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any sy stem of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms.32 The Court reasoned that it would be possible fo r a jury to award damages merely to punish a sentiment with which it disagreed.33 As a result, the Gertz Court ruled that plaintiffs who fail to prove actual malice can only recover damages based on actual injury under the Constitutions protections.34 By its very wording, the Gertz opinion placed no restrictions on plaintiffs who 30 See ROBERT D. SACK, SACK ON DEFAMATION 10.2 (3d ed. 2000). 31 Gertz, 418 U.S. at 349. 32 Id. 33 Id. 34 Id. at 349-350. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. Id. at 349.
219 prove actual malice, whether they be public officials, public figures or private persons.35 Under Gertz then, a plaintiff must prove actual malice in order to recover either presumed or punitive damages in cases involving matters of public concern. The Gertz opinion clearly established that actua l injury damages were those damages designed to compensate a plaintiff for the injury to reputation that coul d actually be proven.36 However, the Court did not define the term, writing that trial courts could properly frame the jury instructions for their defamation trials.37 Instead, the Court provided some examples of actual injury, which made it clear that actual injury co uld include more that simply pecuniary harm: Indeed, the more customary types of actual ha rm inflicted by defamatory falsehood include impairment of reputation and standing in th e community, personal humiliation, and mental anguish and suffering.38 In making such a decision, the Court also establishe d the need for a plaintiff to present concrete evidence supporting claims of actua l injury, noting that mere sp eculation would not justify an award of damages to compensate a plaintiff.39 The Gertz decision did not answer all the que stions regarding damages. After Gertz, a case that involved speech about a matter of public co ncern, it was unclear what showing of harm private plaintiffs suing over speech that did not involve a matter of public concern would be required to prove to recover damages. In 1985 in Dun & Bradstreet v. Greenmoss Builders, 35 Id. 36 Id. 37 Id. 38 Id. 39 Id. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, althou gh there need be no evidence which assigns an actual dollar value to the injury. Id.
220 Justice Lewis Powell, writing for a plurality of th e Court, noted that when speech involves purely private matters: [T]he rationale of the common-law rules has b een the experience and judgment of history that proof of actual damage will be impossible in a great many cases where, from the character of the defamatory wo rds and the circumstances of pub lication, it is all but certain that serious harm has resulted in fact.40 As a result, in cases involving private persons de famed in connection with matters that are not a matter of public concern, the Supreme Court has upheld the allowance of presumed damages and punitive damages, noting that the Constitution impos es no restrictions on damage awards. These cases arise, the Court said, when speech involves pur ely private matters, such as in the case of a credit report. Because of this, the Court stated that there is no public interest and no need for uninhibited, robust and wide-open debate on such private matters.41 Thus, no special protection for the private speech, su ch as requiring a plaintiff to prove actual injury, is provided by the Court before an award of presumed or punitive damages.42 The Courts Look at Harm: Online Defamation For the most part, courts have begun to l ook at harm in online defamation cases in a manner similar to the way they have addressed harm in traditional defamation cases, applying the same constitutional and common law principles. Thus far, only two state appellate courts and one federal trial court have pr ovided substantive discussion of harm in the context of online defamation cases. The discussions of harm seem to offer little recognition of the unique nature of the medium and the potential for differences in the types of harm th at may emerge from 40 Id. ( quoting WM. PROSSER, LAW OF TORTS 112, p. 765 (4th ed. 1971) 41 Dun & Bradstreet, 472 U.S. at 762 ( quoting New York Times Co. v. Sullivan 376 U.S. 264, 270 (1964)). 42 Id. at 764. We conclude that permitting recovery of pres umed and punitive damages in defamation cases absent a showing of actual malice does not violate the First Amendment when the defamatory statements do not involve matters of public concern. Id.
221 defamatory statements published on the Internet unlike the community and plaintiff status discussions. As a result, harm in online cases is most often judged using the same common law rules that courts apply in traditional print and broadcast defamation cases. The first significant discussion of harm o ccurred in an online defamation case largely focused on the issue of anonymity. In Dendrite International, Inc. v. Doe, No. 3, the appellate division of the New Jersey Superi or Court affirmed the trial cour ts ruling that the plaintiff corporation must show harm resulting from a defamatory statement before it was entitled to discovery to obtain an anonymous speakers identity.43 Dendrite sued after John Doe No. 3, posting online as xxplrr, made several co mments on a Yahoo! message board about the presidents financial dealings and the corporations accounting practices.44 The corporation argued, before the state appellate co urt, that harm was not an elem ent required to be plead as a part of its online defamation lawsuit.45 In the alternative, the cor poration asserted it had proven the element of harm, meaning the tr ial court had erred in its ruling.46 The appellate court rejected both of Dendrite Corp.s claims, ruling first that the company must prove harm and, second, that it had not done so.47 The court noted that Dendrite Corp.s claim made vague references to the harms stemming from the John Doe statements: Defendants' publication of these statements has caused irreparable harm to Dendrite for which Dendrite has no adequate remedy at law, and will continue to cause such irreparable harm unless restrained by this Court. In addition, as a proximate result of defendants' publication of these statements, Dendrite ha s sustained harm to its business reputation 43 Dendrite International Corp. v. Doe, 775 A.2d 756, 759-760 (N.J. Super. Ct. App. Div. 2001). 44 Id. at 763. John's [Dendrite president John Bailye] got his contracts salted away to buy another year of earningsand note how they're changing revenue recognition accounting to help it. Id. 45 Id. at 766. 46 Id. 47 Id.
222 resulting in damages in an amount to be prove n at trial, and Dendrite will continue to suffer additional damages in the future according to proof.48 In a preliminary ruling, one judge alluded to th e type of harm that would have met Dendrite Corp.s burden.49 Noting the court was looking for a more concrete showing, the judge said that linking the statements to a declin e in stock price may have been acceptable if it had been done by an expert.50 Further, the judge asserted that it was not enough for Dendrite Corp. to allege the statements harmed the company; it must instea d show the actual harm the stemmed from those messages.51 The appellate court affirmed the standa rd used by the motion judge to make the ruling even though it was more burdensome than th e standard the appellate court would have applied.52 In Sunlight Saunas v. Sundance Saunas,53 the U.S. District Court for the District of Kansas heard a defendants motion to dismiss a defa mation case where the plaintiff claimed the defendant defamed his company through false repr esentations on the defendants Web site and false oral statements to customers.54 Among other claims, the defenda nt asserted the plaintiff could not show causation between the defamatory statements, which attacked the quality and 48 Id. at 769. 49 Id. 50 Id. 51 Id. 52 Id. at 771. Here, although Dendrite's defamation claims would survive a traditional motion to dismiss for failure to state a cause of action, we conclude the motion judge appropriately reviewed Dendr ite's claim with a level of scrutiny consistent with the procedures and standards we adopt here today and, therefore, the judge properly found Dendrite should not be permitted to conduct limited discovery aimed at disclosing John Doe No. 3's identity. Id. 53 See 427 F.Supp.2d 1032 (D. Kan. 2006). 54 Id. at 1071. Lie # 3: No Safety Warnings Sunlight Saunas has no safety compliance. The Truth Ever wonder why they aren't UL, CSA, or ETL certified? Ask your home Insurance company abou t products with heaters operating at several hundred degrees that don't meet these standard s. Infrared sauna Heaters operate between 300 and 600 degrees [F]ahrenheit. Can you imagine buying an oven that has not been certified to the minimum standards the USA has established for safety? Now imagine putting those oven heating elements inches from kiln dried wood without any safety certification. Sounds crazy but Sunlight as usual takes the shortcut to profit. Id. at 1046.
223 safety of the spas, and harm to Sunlights reputation.55 The district court, relying on the standards used in traditional pr int and broadcast defamation cases, concluded that the plaintiff could establish such causation in three ways.56 First, the business could show that people were deterred from associating with the business. A second method would allow business owners to show the businesss reputation had been lowere d in the community. Finally, the business owner could show its business suffered. Using the three methods, courts are allowed to make reasonable inferences as to damage based on the evidence presented.57 Here, the court noted that could include the inference of damage to busine ss reputation based on evidence of lost sales.58 In making such a conclusion, the court ruled that the plaintiff had established a contested fact issue with regard to harm and denied the defendants motion fo r summary judgment.59 In 2004, the Missouri Court of A ppeals discussed harm in the context of a case involving a high school principal who wa s defamed via the Internet by his wifes paramour.60 Steven Scott, a high school principal, sued Robert LeClerq after LeClerq, who was ha ving an affair with Scotts wife, engaged in a defamatory chat room convers ation with a student in Scotts school district.61 In those conversations, LeClerq wrote that Scott was being i nvestigated for harassment and sexual stuff and that the student should take caution as well as that the principal was mentally 55 Id. 56 Id. at 1072. 57 Id. ( citing Moran v. State 985 P.2d 127, 133 (1999)). 58 Sunlight Saunas, 427 F. Supp.2d at 1072. 59 Id. 60 See Scott v. LeClerq, 136 S.W.3d 183 (Mo. App. W.D. 2004). 61 Id. at 194.
224 unstable.62 To prove harm, the princi pal called the school superint endent, who testified that those kind of allegations would da mage an educators reputation: It is a business where yo u really live and die on your cred ibility. That's really all you have is your professional reputati on and how the public perceives you and how the board of education perceives you. And if th ere is a rumor of that nature out there and it isn't true I think it would be normal for that to be reported.63 The superintendent went furthe r, saying that he thought Scott s reputation was damaged in the eyes of others and that some pe ople likely believed the allegations.64 The appellate court, noting that the third-party testimony about injury to reputation was from a person of authority in Scotts profession, found that testimony to be sufficient evidence of harm.65 As a result it seems that at least one court was willing to accept testimony as to harm from third-pa rty witnesses who were not privy to the defamatory statements. Conclusion Whether a plaintiff must prove damages in a defamation action depends on both the constitutional and common law rules that apply. Under Gertz, private plaintiffs who file suit over defamatory statements arising from the discussion of matters of public co ncern must prove actual injury damages to recover. Private plaintiffs su ing for defamation arising from matters of private concern those plaintiffs discussed in Dun & Bradstreet need only meet the common law damages requirements established by their jurisd ictions. In such cases, presumed damages may be available to plaintiffs who sue under libel per se. However, some states will require plaintiffs 62 Id. at 195. 63 Id. at 195. 64 Id. at 196. 65 Id. Evidence of the chat room conversation was sufficient to support a finding of actual reputational harm entitling Mr. Scott to damages. Therefore, this court need not decide whether Mr. LeClerq's publishing Mr. Scott's name, address, and telephone number on websites caterin g to homosexuals and stating that Mr. Scott was a homosexual soliciting sexual relationships with other men, which resulted in Mr. Scott's receiving solicitations from men who had seen this information on the websites, constituted evidence of actual reputational harm. Id.
225 to prove special damages. Although it varies from state to state what a pl aintiff must prove in these situations, most courts allow plaintiffs to prove injury to busine ss reputation, injury to personal reputation and pecuniary loss. Both the common law standards and constitu tional requirements used by the courts traditional print and broadcast defamation cases have been applied to plaintiffs seeking to prove harm in online defamation cases. For the most part, courts have not yet recognized varying definitions of harm or different standards of proof for injury to reputation caused by online defamation. In fact, in most cases, the courts simp ly apply standards gleaned from earlier print or broadcast defamation cases.
226 CHAPTER 7 CONCLUSION This dissertation has outlined the major defamation jurisprude nce shaping the concepts of community, harm and plaintiff status in the United States. The court decisions involving traditional print and broadcast defamation provide a solid foundation for defining those elements in online defamation cases. However, courts are just beginning to addr ess the concepts of community, harm and plaintiff status in cases involving online defamation. In some opinions, including the Supreme Courts Reno v. ACLU decision, the courts have begun to recognize that the Internets unique characteristics, such as the lack of geographic boundaries, may require special consideration. However, in others, the cour ts have simply applied the constructs used in traditional print and broadcast defamati on to cases involving online defamation. This chapter will begin with an overall summar y of the jurisprudence in both traditional and online defamation cases. It will then discuss the implications of the jurisprudence for online defamation cases. From there, First Amendment theo ries will be used to address the implication of the jurispruden ce for online speech. This chapter will answer the Research Questions presented in Chapter One: What are the significant issues for online de famation that have not been adequately addressed in the sc holarly literature? How do the courts define the notions of co mmunity, harm and public figure status in defamation cases that do not involve online defamation? How do the courts define the notions of co mmunity, harm and public figure status in online defamation cases? What considerations are important when the co urts try to define th e notions of community, harm and public figure status in online defamation cases? What issues are important to consider when balancing reputation and the First Amendment?
227 Chapter Seven will conclude with suggestions for future research and summary of the dissertations findings. Research Questions Based on this dissertations le gal research methodology and da ta, the author set out to answer the following research questions: What Are the Significant Issues for Online De famation that Have Not Been Adequately Addressed in the Scholarly Literature? After conducting a review of th e literature, it was clear that scholars had begun to discuss two key areas in the context of online defama tion: jurisdiction and anonymity. The Internet creates unique concerns with regard to both ju risdiction and anonymity, and both scholars and courts have thoroughly addressed those issues. For example, many scholars have addressed the number of frameworks that courts have develope d to determine when a plaintiff can compel the identification of an anonymous defe ndant in an online defamation action.1 Similarly, a number of articles have touched on the jurisdictional complications associated with online defamation lawsuits, including determining whether a court can exercise authority over a defendant and what states laws should apply to a particular case.2 However, there was not a well-developed body of literature with regard to the definitions of community, harm and plaintiff status in onl ine defamation actions. There are some articles discussing these concepts in the framework of tr aditional print and broadcast defamation cases, 1 See, e.g., Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE L.J. 855, 886 (2000).; Margo E.K. Reder and Christine Neylon O'Brien, Corporate Cybersmear: Employers File John Doe Defamation Lawsuits Seeking the Identity of Anonymous Emplo yee Internet Posters 8 MICH. TELECOMM. TECH. L. REV. 196, 217 (2002).; Lyrissa Barnett Lidsky & Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech 82 NOTRE DAME L. REV. 1537 (2007). 2 See, e.g., Patrick J. Borchers, Internet Libel: The Consequences of a Non-Rule Approach to Personal Jurisdiction, 98 NW. U. L. REV. 473 (2004).; Eric Barendt, Jurisdiction in Internet Libel Cases, 110 PENN. ST. L. REV. 727 (2006).
228 but very few discuss the concepts as they relate to online defamation.3 To date, no authors have thoroughly addressed community, harm and plai ntiff status in online defamation cases. How Do the Courts Define the Notions of Community, Harm and Pl aintiff Status in Defamation Cases that Do Not Involve Online Defamation? Approaches to defining community, harm and pl aintiff status can be traced back to the U.S. Supreme Courts jurisprudence. In a few inst ances, these cases date back to the days before Times v. Sullivan. But for the most part, the S upreme Court has only rece ntly begun to explore such modern concepts of the defamation tort in light of the Courts m ove to constitutionalize major issues in libel law to protect wide open sp eech about people who play a significant role in the countrys decision-making. In the case of all th ree categories that have become the focus of this dissertation, the U.S. Supreme Court has prov ided guidelines instead of bright-line rules to the lower courts to help them define the concepts in the defamation cases th ey decide. In the past four decades, the lower courts ha ve utilized this guidance from the Supreme Court to craft their own analytical frameworks and tests to define community, harm and plai ntiff status in their traditional print and broadcast defamation cases. Community The Supreme Courts concepti on of community dates back to Justice Oliver Wendell Holmes 1909 decision in Peck v. Tribune Co.4 There, he noted that for a statement to be defamatory, it must hurt the plaintiff in the estim ation of an important an d respectable part of the community.5 From this point, the court would focus on the description of the community in which the plaintiff asserted an injury to reputa tion, and most often these approaches were based 3 See David Anderson, Reputation, Compensation & Proof 25 WM. & MARY L. REV. 747, 764-66 (1984). 4 See generally Peck v. Tribune Co., 214 U. S. 185 (1909); Lyrissa Barnett Lidsky, Defamation, Reputation and the Myth of Community, 71 WASH. L. REV. 1 (1996). 5 Peck, 214 U.S at 190.
229 on some sort of geographical inquiry. The Court added a seco nd prong to the definition of community in Joint Anti-Fascist Refugee Committee v. McGrath .6 There, Justice Harold Burton turned to the Restatement of Torts which defined a defamatory communication as a message that tends so to harm the reputation of another as to lower him in th e estimation of the community or to deter third persons from asso ciating or dealing with him.7 For the first time, the Court incorporated the element of associati on as a gauge of reputational injury. More than eight decades later, in Milkovich v. Lorain Journal Co.,8 Chief Justice William Rehnquist wrote that the Court must view defamatory statements in the context in which they were communicated. Thus, he insisted the Milkovich court look at the actionable statement in light of the entire metro area of Cleveland, not s imply the one small town in which the plaintiff resided.9 Although the town in which the case arose wa s a small one, Rehnquist wrote that the court must consider that the c ontroversy leading to the judicial proceeding involved schools from around the Cleveland area, which were members of the athletic conference in which Milkovichs school competed.10 From the Supreme Courts decisions, the lower courts have gone on to look at several key factors when defining community in the context of a defamation case. First, many courts have looked at community as the ta rget audience of the purported defamatory communication. The U.S. Court of Appeals for the D.C. Circuit decide d that a newspaper article in a defamation case must be taken as a whole as it would be read by the average reader in th e community targeted by 6 See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951). 7 See RESTATEMENT OF TORTS 59 (1938). 8 For a brief description of the Milkovich case, see infra ch. 4. 9 Milkovich v. Lorain Journal Co. 497 U.S. 1, 22 n.9 (1990). 10 Id.
230 the publication.11 Courts in Delaware and Ohio have ex amined where statements were published, noting that the proper community can be determined based on the reach of a publication.12 This approach takes into account a large portion of the audience that like ly come into contact with the defamatory statements. A second gauge established by the lower courts is where the plaintiff resides or works to determine where injury to reputation occurs.13 A number of courts have used the community in which the plaintiff resides as guidance in cons tructing the notion of community in defamation cases. This view, which is reflected in the Restatement (Second) of Torts rests on the notion that one is most likely to have his reputation harmed in the community in which he resides. Courts in Oregon and Kansas have examined the plaintiff s occupation to define community, emphasizing the importance of ones professi onal reputation within the workpl ace as well as his reputation within the residential community.14 Other courts, taking a third approach, have looked at the location of the injury to reputation, or where the harm occurs, in conjunc tion with other factors. This mixed methods approach does not seem to vary dramatica lly from the other geography-based inquiries. However, the courts seem to pay particular at tention to where the statement was published and whether the plaintiffs asserted community is an acceptable size and construction. These cases tend to inquire into whether the plaintiffs asserted community is the type of community society is willing to recognize. This appr oach may also consider other fa ctors as well, including where a plaintiff works and where a plaintiff lives. Even though courts may apply one of the geographic 11 Afro-American Publg Co. v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966). 12 See discussion infra ch. 4. 13 See Remick v. Manfredy, 238 F.3d 248 (3rd Cir. 2001). 14 See discussion infra ch. 4.
231 approaches, they often weigh a number of the ge ographic factors to determine proper community in traditional defamation cases. For example, a court may look at both where a person works and resides.15 Or it may look both at a publications target audience and how that overlaps with the plaintiffs community.16 In Jean v. Dugan, the Seventh Circuit did not wholly abandon the geographic test of community, but it did refine the test to look not singularly at the location of publication, but also at where th e publications effect on reputation might be most greatly felt by examining where the plaintiff lived, where he worked and where the defamation was published.17 Although defining community in defamation cases up to this point has been a fact-sensitive decision made with no real bright-l ine rules, all three of these appr oaches target audience of the publication, plaintiffs living or working commun ity and the mixed methods approach largely rely on geography-centered inquiries. Plaintiff status The courts jurisprudence in the area of plaintiff status really began with the U.S. Supreme Courts decision in Times v. Sullivan and took shape through the development of its progeny. Although the Court initially cons tructed the public official ca tegory, which it linked with the actual malice standard of fault in Times v. Sullivan the justices went on to carve out a public figure category as well as the re maining private person categor y. Through the years, the public figure category has grown to encompass three sub categories of public figures: all-purpose, or general; limited purpose, or vortex; and invol untary public figures. While all-purpose public figures are always held to the actual malice fault standard, limited-purpose and involuntary 15 See discussion infra ch. 4. 16 See discussion infra ch. 4. 17 See Jean v. Dugan, 20 F.3d 255, 261 (7th Cir. 1994).
232 public figures can be held to th at fault standard in specific in stances. The remaining category, the Court noted, contained private pers ons, for whom the justices sa id proving negligence provided adequate constitutional protection for defamation defendants. The Supreme Court estab lished relatively clear guidelines for lower courts to determine whether a plaintiff is a public official. In Rosenblatt v. Baer, the Court defined the public official category as containing at the very least to t hose among the hierarchy of government employees who have, or appear to the public to have, subs tantial responsibility for or control over the conduct of governmental affairs.18 Writing for the Court in New York Times v. Sullivan, Justice Brennan noted that criticism of government officials cannot lose its First Amendment protection merely because it may endanger the officials reputations.19 Instead, Brennan wrote, criticism of government officials is at the ve ry heart of American government:20 Thus we consider this case against the background of a pr ofound national commitment to the principle that debate on public issues should be uninhibited, r obust, and wide-open, and that it may well include vehement, caustic, and some times unpleasantly sharp attacks on government and public officials.21 After deciding in Sullivan that public officials must prove actual malice to succeed in a defamation case, the Supreme Court then tackled the public figure plaintiff, a category that has proven much more difficult to delin eate. Public figures, the court sa id, can play as important of a role in shaping society as public officials.22 As a result, the Court was unwilling to differentiate 18 Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). 19 See New York Times v. Sullivan, 376 U.S. 254, 273 (1964) 20 Id. at 274. 21 Id. at 270 22 See Curtis Publg v. Butts, Associated Press v. Walker, 388 U.S. 130, 145 (1967). In many situations, policy determinations which traditionally were channeled thro ugh formal political institutions are now originated and
233 between such categories of plaintiffs on the assu mption that criticism of private citizens who seek to lead in the determination of policy will be less important to the public interest than will criticism of government officials.23 In its public-figure cases, the Supreme Court seems to have enunciated three subcategories of public figures: all-purpose, lim ited-purpose and involuntary public figures. Allpurpose public figure status is granted based on a persons notoriety, which means that he is a celebrity whose name becomes a household word, whose ideas and actions the public in fact follows with great interest.24 For those plaintiffs who do not rise to that level, the courts have created limited-purpose public figure status, which is typically used for plaintiffs who have thrust themselves into discussion of a public controvers y with the purpose of affecting the outcome of the debate.25 Finally, the Supreme Court mentioned the possibility of involuntary public figures, who are drawn into the discussion of a public controversy through no acti on of their own. As a result of these distinctions, much of the discussion in the area of plaintiff status has focused on the three categories of public figures. Starting with Curtis Publishing where the Court found a former college football coach to be a public figure, the Supreme Court has gone on to require a showing akin to actual malice for plaintiffs who are neverthele ss intimately involved in the re solution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.26 implemented through a complex array of boards, committe es, commissions, corporations, and associations, some only loosely connected with the Government. Id. 23 Id. at 148 ( quoting Pauling v. Globe-Democrat Publg Co., 362 F.2d 188, 196 (8th Cir. 1966)). 24 Waldbaum v. Fairchild Publications, 627 F.2d 1287, 1292 (D.C. Cir. 1980) (holding that the well-known operator of a large consumer cooperative was a limited-purpose public figure for defamation purposes). 25 Meerpol v. Nizer, 560 F.2d 1061 (2d Cir. 1977). 26 Curtis Publg, 388 U.S. at 164.
234 In Gertz v. Welch, the Supreme Court added to that th e notion that public figures have access to the media in a way that would allow them to better defend their reputations should they be tarnished during the discussi on of a matter of public concern.27 However, a plaintiff does not become a public figure based on the actions of th e defendant, who would then be creating his or her own defense, in essence. In Hutchinson v. Proxmire, the U.S. Supreme Court found Ronald Hutchinson, a university professor, to be a private person despite the amount of publicity he got after William Proxmire, a Wisconsin senator, awarded him a Golden Fleece award for his federally funded research.28 As a part of the Supreme Courts test to determine whether a person is a public figure, the justices stated that a sp ecific public controversy must exist in which the plaintiff is involved, not merely a general interest in an issue. If just a ge neral public interest were required, the Court reasoned, there would be an inordinate num ber of plaintiffs in such a category.29 The Supreme Court also addr essed the level of fault th at a private person would constitutionally be requi red to prove in its 1974 Gertz decision. In the case, the Court held that a prominent Chicago attorney was a public person for the purposes of his defamation lawsuit over an article in American Opinion that referred to him as a Lenin ist and Communist-fronter, based on his litigation against law enforcement.30 Private figures, the Court reasoned in Gertz v. Welch, do not play that type of prom inent role in shaping society.31 Ruling that the Constitution 27 Gertz, 418 U.S. at 343-345. 28 Hutchinson, 443 U.S. at 114 (holding that a university professor was not a public figure in a defamation action based on the press interest in the case or because of an interest in public spending of taxpayers money to fund his grant). 29 Id. 30 Gertz, 418 U.S. at 326. 31 Id.
235 requires only that a private person prove some level of fault to succeed in a defamation action, Justice Powell asserted that private persons, unlik e public officials and public figures, dont have the same means of redress to counteract damage to reputation.32 Public officials and public figures have greater access to the media and have opened themselves up to criticism based on the highly public nature of their lifestyles.33 In the case of private pers ons, however, the state has a much greater interest in protecti ng them from reputational injury.34 The rules regarding what level of fault private plaintiffs must prove continued to be refined by the U.S. Supreme Court. In Dun & Bradstreet v. Greenmoss Builders ,35 the Court ruled that a private person need not prove actual malice in order to recover in a defamation lawsuit over a purely private matter. However, shortly after Dun & Bradstreet the Court ruled in Philadelphia Newspapers v. Hepps that private plaintiffs must prove falsity in addition to fault in lawsuits against media defendants where the matter was an issue of public concern.36 After the U.S. Supreme Court cr afted the major categories of plaintiff status and outlined general guidelines for determining who fit wh ich category, the lower federal courts began piecing together a picture of how to categorize defamation plaintiffs. Determining whether a plaintiff is a public official is likely the easiest categorization for the lower courts to make. Guided by the Supreme Courts general discussion in Sullivan that judges, government officials 32 Id 33 Id at 343-345. 34 Id at 344. 35 See Dun & Bradstreet, 472 U.S. at 749 (holding that a private person need not prove actual malice to succeed in a defamation action involving purely private matters). 36 See Hepps 475 U.S. at 767 (holding that private figures must prove falsity to recover from a media defendant if the defamatory statement stemmed from an issue of public concern).
236 and elected commissioners fa ll within such a category,37 the lower courts have gone on to address the issue dealing with government empl oyees at all levels, including inte rnational officers, national officers, state officers and even municipal employees. As a rule, the courts have often put law enforcement offici als and public school educators in to the public official category based on their authority and their discretion to make important decisions that affect society.38 To determine whether a plaintiff is a limite d-purpose public figure, lower courts have typically followed one of two te sts established in the federal a ppellate courts. The D.C. Circuit crafted a three-part test in Waldbaum v. Fairchild Publications that asks whether: (1) the plaintiff had access to channels of eff ective communication; (2) the plaintiff voluntarily assumed a role of special prominence in a publ ic controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy.39 Along the same lines, the Fourth Circuit expanded the Waldbaum test into a five-part inquiry in Fitzgerald v. Penthouse International.40 That test is: (1) the plaintiff had access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominen ce in a public controvers y; (3) the plaintiff sought to influence the resolution or outcom e of the controversy; (4) the controversy existed prior to the publication of the defamatory statements; and (5) the plaintiff retained public figure status at the al leged time of the allegation.41 As a result, the lower federal courts look at two ba sic elements to determine whether a plaintiff is rightfully classified into the publ ic-figure category or instead remains a private person for most 37 Sullivan, 376 U.S. at 273. If judges are to be treated as men of fortitude, able to thrive in a hardy climate, surely the same must be true of other government officials, such as elected city commissioners. Id. ( quoting Craig 331 U.S. at 376). 38 See, e.g., Garcia 777 F.2d at 1403; Buendorf, 822 F. Supp. at 6. 39 Walbaum, 627 F.2d at 1296. 40 Fitzgerald, 691 F.2d at 666. 41 Id. The fifth item refers to the precedent that public figure status can survive many year s, even decades, when the alleged defamation is about events of the past.
237 of the traditional print an d broadcast defamation cases. The firs t is whether there is a matter of public concern in which the plaintiff has sought to influence the outcome. The second is to examine the plaintiffs access to the media. Appl ying these criteria, the federal appellate courts have found the Rosenberg children,42 the CEO of a food co-op43 and an expert on the militarys use of dolphins44 to be limited-purpose public figures. Harm The concept of harm plays an important role in defamation litigation. The U.S. Supreme Court has often said the primary interest behind the tort of defamation is the compensation of individuals whose reputati ons have been harmed by defamatory falsehoods.45 Justice Stewart enunciated this eloquently in Rosenblatt v. Baer, writing that allowing such compensation: reflects no more than our basic concept of th e essential dignity and worth of every human being a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our cons titutional system.46 The need for the state to provide protecti on for reputation runs throughout the Courts defamation jurisprudence, with the Court noting in Getz v. Welch that the truth rarely catches up with a lie.47 However, as the Courts defamation juri sprudence has matured, the justices have injected the common law of defamation with several constitutional hurdles over which defamation plaintiffs must climb.48 42 See Meerpol 560 F.2d at 1061. 43 See Waldbaum, 627 F.2d at 1292. 44 See Fitzgerald, 691 F.2d at 666. 45 See Gertz 418 U.S. at 341 (1974). 46 383 U.S. 78, 92 (1966) (Stewart, J., concurring). 47 Gertz, 418 U.S. at 344 (n. 9). 48 See, e.g., Gertz 418 U.S. at 323; Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985).
238 At common law, damage resulting from a de famatory publication could be presumed.49 In these libel per se situations, the existence of injury is presumed from the fact of publication.50 Presumed damages allowed plaintiffs to be compensated for emotional harm that resulted from the injury to reputation. Such a view is represented in the Restatement (Second) of Torts.51 Notably, when a plaintiff pleads and establishes libel per se, the plai ntiff need not allege or prove any special damages. In fact, general damages are presumed and nominal damages are available in any event.52 Many states still allow plaintiffs to proceed in court without having to prove actual damages to meet the common law damages requirement.53 In these states, certain types of defamatory statements those that are libelous per se are harmful on their face and the court will instruct the jury to presume that injury to reputation follows if the statement is found to be defamatory. State courts have es tablished a variety of methods of proof through which plaintiffs can fulfill the common law damage requirements. Often, plaintiffs prove any of several types of harm: injury to business reput ation, injury to personal repu tation or pecuniary injury. As the Supreme Court began to constitutiona lize the law of defamation in the 1960s, its rulings would overlay a set of constitutional requirements for damage s on top of the common law requirements.54 Except in a specific group of cases outlined by the Supreme Court in Gertz the common law damages rules still apply to defamation lawsuits in most jurisdictions.55 For 49 See DAN B. DOBBS, LAW OF TORTS 422 (2000). 50 Gertz, 418 U.S. at 349. 51 See RESTATEMENT (SECOND) OF TORTS 569. 52 See Shoemaker v. Community Action Org. of Scioto City, 2007 WL 2070365 13 (Ohio Ct. App.). 53 See, e.g., Bentley v. Bunton, S.W.3d 561, 605 (Texas 2002); Hamilton v. Prewett, 860 N.E.2d 1234 (Ind. App. 2007) If the communication is defamatory per se, damages are presumed even without proof of actual harm to the plaintiffs reputation. Id. at 1243. 54 See ROBERT D. SACK, SACK ON DEFAMATION 10.2 (3d ed. 2000). 55 See DOBBS, supra note 49, at 422.
239 private plaintiffs suing over defama tion that arises in the discussion of matters of private concern those plaintiffs covered by Dun & Bradstreet the common law damage rules guide the award of damages. Thus, the Constitution does not impose any restrictions on damages in this category of cases.56 The Gertz Court ruled that plaintiffs who fail to prove actual malice can only recover damages based on actual injury under the Constitutions protections.57 By its very wording, the Gertz opinion placed no restrictions on plaintiffs who prove actual malice, whether they be public officials, public figures or private persons.58 Under Gertz then, a plaintiff must prove actual malice in order to recover either presumed or punitive dama ges in cases involving matters of public concern. The Gertz opinion clearly established that actua l injury damages were those damages designed to compensate a plaintiff for the injury to reputation that coul d actually be proven.59 However, the Court did not define the term, writing that trial courts could properly frame the jury instructions for their defamation trials.60 Instead, the Court provided some examples of actual injury, which included impairment of reputat ion and standing in the community, personal humiliation, and mental anguish and suffering.61 The Gertz decision did not answer all the que stions regarding damages. After Gertz, which applied to speech about a matter of public concer n, it was unclear what harm private plaintiffs 56 Dun & Bradstreet, 472 U.S. at 759-760. 57 Id. at 349-350. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. Id. at 349. 58 Id. 59 Id. 60 Id. 61 Id.
240 suing over speech that did not involve a matter of public concern would be required to prove to recover damages. In 1985 in Dun & Bradstreet v. Greenmoss Builders, Justice Lewis Powell, writing for a plurality of the Court, noted th at when speech involves purely private matters: The rationale of the common-law rules has b een the experience and judgment of history that proof of actual damage will be impossible in a great many cases where, from the character of the defamatory wo rds and the circumstances of pub lication, it is all but certain that serious harm has resulted in fact.62 As a result, in cases involving private persons de famed in connection with matters that are not a matter of public concern, the Supreme Court has upheld the allowance of presumed damages and punitive damages. Under the Gertz standard, however, parties who are defamed by speech involving a matter of public concer n must still show pr oof of actual injury damages to recover presumed and punitive damages. How Do Courts Define the No tions of Community, Harm and Plaintiff Status in Online Defamation Cases? As discussed in this and earlier chapters, co urts in the relatively few online defamation opinions issued so far often turn to the same ru les they apply in traditional print and broadcast defamation cases to define the notions of communit y, harm and plaintiff stat us in cases involving online defamation. For the most part, courts rely on the rules that have largely developed since Times v. Sullivan Community Most courts that have discussed the issue of community in online defamation cases have done so in the context of deciding whether a co urt has jurisdiction to hear the case. Although most of these jurisdiction decisions do not direct ly address the definition of community as an element of defamation, they certainly provide in sight into how the cour ts may decide online 62 Id. ( quoting W. PROSSER, LAW OF TORTS 112, p. 765 (4th ed. 1971).
241 defamation cases and how they view the role of the Internet in mass communication. Most of these jurisdictional questions arise when a cour t in unsure whether it can legally hear a case involving communication from one jurisdiction that may bring about injury in another jurisdiction. For inst ance, while discussing juri sdiction in a case between a college professor and his former student located in two different stat es at the time, the North Dakota State Supreme Court discussed the notion of community.63 In that case, the court looked at the geographic reference to the University of North Dakota c ontained in the Web sites Internet address (www.undnews.com), the Internet s ites subject and the geographi cal boundaries of the network used to transmit the communication to dete rmine the proper jurisdiction and arguably community was in North Dakota, not Minnesota.64 The court reasoned that the plaintiff did particularly and directly target North Dakota with her Web site.65 A publications target audience is one of the factors th at courts used to define comm unity in traditional defamation cases and may be one of many relevant factor s to defining community in online defamation. In addition to examining a courts jurisdictiona l analysis in online defamation cases, it is possible to glean some inferences about the de finition of community in online defamation by looking at a courts choice-of-law analysis. The reasoning behind a courts decision as to which states laws apply in a particular case may pr ovide useful information about which community the court believes is most rele vant in the case. For example, a federal district court, when deciding whether to apply New Yo rk or California defamation law in an online defamation case, noted that the most important f actors to consider in the decisi on were the parties place of 63 See Miskin 660 N.W.2d at 593. 64 Id. at 599. 65 Id.
242 residence and the location where the tort occurred.66 The court, observing that the defamatory statement was transmitted via the Internet, ruled that the proper location in which the injury occurred was, at the very least, national in scope.67 Given that the court was willing to acknowledge the likelihood of injury to reputati on on a national scale, this may provide support for a court to find a national or internati onal community in online defamation cases. Examining where the injury to reputation occu rred is not a new concept in defamation law and many traditional defamation opinions have used similar criteria. In online defamation cases, the court inquiries often focus on where the plai ntiff resides or works as a proxy for where the injury to reputation likely occurr ed. Occasionally, this will incl ude where the publication of the defamatory statements occurred as well. Courts may look at where an e-mail was sent from or in what state a Web site was created. For the mo st part, these geographi c criteria have been routinely carried over from tr aditional print and broadcast defamation cases into online defamation cases. However, some courts in online defamation cas es also seem to r ecognize the expansive geographic reach of the Internet and the specifi c concerns such reach can create in online defamation cases. As a result, in discussing comm unity, they have examined where the defendant targeted the communication and where the greatest harm to reputation likely occurred if these were different from where the statements were pu blished. For example, a Fl orida appellate court, sitting in an Internet defamation case, specifi cally acknowledged the pot ential for harm to the plaintiffs reputation in a commun ity that was larger than the tr aditional rules would allow the court to recognize. Noting that the state in wh ich the case was tried followed the common mind 66 Condit 317 F. Supp.2d at 352 ( quoting Lee, 166 F.3d at 545). 67 Condit, 317 F. Supp.2d at 353.
243 rule, the court said it was precluded from fi nding injury to reputation. This was because the community to which the statement was targeted a group called Jews for Jesus would not have viewed the statement that the Jewish plainti ff had accepted Jesus Christ as her savior as defamatory. However, the court acknowledged that Jewish non-members of the community could have come into contact with the communica tions and viewed the statements as defamatory given the reach of the Internet. But, the comm on mind rule, which looks at how the average member of the target audience viewed the statement, precluded the court from ruling in the plaintiffs favor. Plaintiff status As discussed in Chapter 5, the courts have relied heavily on the plaintiff status tests established in traditional print and broadcast de famation cases. Courts in online defamation cases have looked at several key factors esta blished by the U.S. Supreme Court in Gertz. This includes an examination of the plaintiffs access to the me dia. For example, several state courts hearing online defamation cases have turned to the D.C. Circuits Waldbaum test, which draws on Gertz, to determine whether a plaintiff is a limited-purpose public figure. The Georgia Supreme Court applied the Waldbaum inquiry in an online defamation case, noting the comments posted online by the defendan t were germane to the plaintiffs role in a solid-waste controversy.68 In another case, a Georgia appeals court reasoned that access to the media justified finding the director of animal se rvices to be a limite d-purpose public figure, noting he issued press releases, spoke to TV cr ews and shared his views with elected officials.69 68 Mathis 573 S.E.2d at 382 69 See Atlanta Humane Society, 618 S.E.2d at 18.
244 One key difference between the courts determination of plaintiff status in traditional print and broadcast cases and online defamation cases is th e examination of the role of the Internet in the controversy. For example, many courts looked at the plaintiffs use of th e Internet prior to the defamatory statements as a part of their analysis of the plaintiffs access to the media. Implicitly, this may suggest the courts r ecognition of the Internets role as a mass medium. A California court noted the plaintiffs use of its own Web site prior to the defamation lawsuit. The company relied on its site to post news releases on issues of concern to its stockholder s as well as to tout the benefits that a new project would have for the companys future helped make it a limitedpurpose public figure in an online defamation case.70 This use of the Internet, the court observed, pre-dated the defamation lawsuit an d even concerned the project th at was subsequently criticized by the defendant. Although the courts deciding onlin e defamation cases have, for the most part, followed the test outlined in Gertz to determine whether plaintiffs ar e limited-purpose public figures, there have been some courts that have modified the Gertz analysis. These courts have examined a plaintiffs reliance on the Intern et as a medium of mass communication prior to the defamation lawsuit to help determine plaintiff status. Harm As discussed in Chapter 6, courts have begun to look at harm in onlin e defamation cases in a manner similar to the way they have addressed harm in traditional defamation cases, applying the same constitutional and common law principles. Thus far, only two state appellate courts and one federal trial court have pr ovided substantive discussion of harm in the context of online defamation cases. The discussions of harm seem to offer little recognition of the unique nature of 70 See Ampex Corp., 27 Cal.Rptr.3d at 863.
245 the medium and the potential for differences in the types of harm th at may emerge from defamatory statements published on the Internet unlike the community and plaintiff status discussions. As a result, harm in online cases is most often judged using the same common law rules that courts apply in traditional print and broadcast defamation cases. One of the first discussions of harm in an online defamation case came in the context of whether a court should reveal the identity of an anonymous poster who posted defamatory comments about a corporation online. In Dendrite International, Inc. v. Doe, No. 3, the appellate division of the New Jersey Superi or Court affirmed the trial cour ts ruling that the plaintiff corporation must show harm resulting from a defamatory statement before it was entitled to discovery to obtain an anonymous speakers identity.71 Noting the court was looking for a more concrete showing of harm than Dendrite Corp. had made,72 the judge wrote that linking the statements to a decline in stock price may have been acceptable if done by an expert.73 Had Dendrite Corp. made such a showing as the harm, the court may then have allowed the identity of the poster to be revealed. Harm has also been discussed in the context of a motion to dismiss in an online defamation case. In Sunlight Saunas v. Sundance Saunas,74 the U.S. District Court fo r the District of Kansas, relying on the standards used in traditional print and broadcast de famation cases, noted that the plaintiff could successfully establish a link betwee n the defamatory statements and their alleged 71 Dendrite, 775 A.2d at 759-760. 72 Dendrites verified complaint contained this allegation of harm: Defendants' publica tion of these statements has caused irreparable harm to Dendrite fo r which Dendrite has no adequate remedy at law, and will continue to cause such irreparable harm unless restrained by this Court. In addition, as a proximate result of defendants' publication of these statements, Dendrite has sustained harm to its bu siness reputation resulting in damages in an amount to be proven at trial, and Dendrite will contin ue to suffer additional damages in the future according to proof. Id. at 769. 73 Id. 74 See Sunlight Saunas, 427 F. Supp.2d at 1032.
246 harm in one of three ways.75 First, the business owner could show that people were deterred from associating with the business. A second method would allow th e business owner to show the businesss reputation had been lowered in th e community. Finally, th e business owner could show that his business suffered. If the plaintiff used one of the three methods, the court could make reasonable inferences as to da mage based on the evidence presented.76 In Sunlight Saunas the court noted that the victim could prove da mage to business reputation based on evidence of lost sales.77 Such evidence of harm, it ruled was enough to withstand a motion to dismiss. Similarly, a Missouri appellate court has addr essed harm in an online defamation case as well, explicating additional evidence of harm th at would suffice for a plaintiff to succeed. In Scott v. LeClerq the court ruled that third-party tes timony related to harm to reputation by someone in the plaintiffs professional field was enough to show harm in an online defamation case.78 The third-party witness also testified that others who came into contact with the speech may have believed it, which coul d cause injury to th e plaintiffs professional reputation.79 As a result it seems that at least one court was willin g to accept testimony as to harm from third-party witnesses who were not privy to the defamatory statements. What Considerations Are Important When Courts Try to Define the Notions of Community, Harm and Plaintiff Status in Online Defamation Cases? As courts continue to hear cases involving online defamation, they will likely have to continue to address the unique ch aracteristics of the Internet as a communicative medium. Unlike newspapers, which are usually constrained by ge ographic boundaries, the Internet is a global 75 Id. at 1072. 76 Id. ( citing Moran, 985 P.2d at 133). 77 Sunlight Saunas, 427 F.Supp.2d at 1072. 78See LeClerq, 136 S.W.3d at 194. 79 Id.
247 medium. Unlike television, where broadcasts are controlled by a government-issued license, the Internet can be used by anyone with access to it through a computer meaning millions across the world. Unlike traditional defamation, in whic h damages may be more easily traced to a speaker, the Internet allows speak ers who are frequently incapabl e of being easily ascertained to quickly and effortlessly transmit and republish defamatory material. All of these factors, both singularly and acting in concert, will likely spur the court to craft unique guidelines for defamation resulting from the emerging medium. Community: Geographic reach of the Internet If, as Chapter 4 has shown, the definition of community is sensitive to where the plaintiff lives and works, where the defamation was publis hed and to what audience it was targeted, the Internets global reach will most certainly come into play as the courts continue to craft a definition of community in online defamation cases. After all, as shown in Chapter 2, the Internet is a worldwide tool that allows millions of user s to send text, video and audio signals in realtime.80 It is a medium that was utilized by more than one bi llion communicators across the globe as of June 2006.81 Further, it has become a medium through which people can both send and receive content.82 As a result, the courts traditi onal definition of community the geographic notion based on coverage area that it applied in cases involving print and broadcast defamation will likely have to change to acco mmodate the first truly global medium of mass communication. 80 See MATTHEW COLLINS, THE LAW OF DEFAMATION AND THE INTERNET 20-30 (2d ed. 2005). 81 See World Internet Usage and Population Statistics, at www.internetworldstats.com/stats .htm (last visited Sept. 5, 2006). 82 See Amanda Lenhart, Bloggers i (2006), at http://www.pewinternet.org/pdfs/ PIP%20Bloggers%20Report%20July%2019%202006.pdf (last visited Sept. 6, 2006).
248 One solution may be to look at a number of factors when trying to determine community, including where a plaintiff lives, where a plain tiff works, where the statements were published and who was intended as the target audience. Such a mixed methods approach has been used by a few courts in both traditional and onlin e defamation cases. In 1994, the Seventh Circuit applied a form of the mixed method approach in Jean v. Dugan when refining the geographic approach used by earlier courts.83 There, the appellate court looke d at community in the context of a choice-of-law issue that required it to decide whether to apply Indiana or Illinois law. To decide which states law to apply in the case, the Seventh Circuit looked at where the plaintiff lived, where the plaintiff worked and where th e publication was printe d and distributed. The court then balanced the competing interests to determine where injury to reputation was the greatest. Such a mixed methods approach that ba lances the competing interests of both parties could likely be applied to defi ne community in addition to de termining whether the court has jurisdiction, or authority to hear the case. Another solution may be to take the speci fic community approach, which would look at sub-communities within the general population. The idea of specific community has been considered in both traditional and online defamati on cases. For example, a federal trial court in New York implied in a traditional defamation cas e that although the plai ntiffs reputations may not have been injured in the eyes of the general public, they could have be en harmed in the eyes of the art community. The opini on reasoned that among traders, sc holars, sellers and historians in the art world, a persons re putation could be of high im portance even though the general public would not be as concerned.84 In the context of online defa mation, the Florida courts dealt 83 See Dugan, 20 F.3d at 261. 84 See McNally 764 F. Supp. at 838.
249 with the issue of specific community in a case dealing with defamatory statements posted on a religious groups Web site.85 The state appellate court in Rapp v. Jews for Jesus, refused to recognize the plaintiffs construc tion of community, which essent ially amounted to the general public.86 Instead, the court said the proper community was the religious gr oup to whom the Web site statements were directed a group that wo uld not have interpreted them in a defamatory manner.87 One possible benefit to looking at speci fic communities may be the ability to add some predictability to the choice-of-law questions that often arise in Internet cases involving parties in different states or even nations. By using specific communities, courts may be able to develop a set of uniform Intern et-specific guidelines to determine which jurisdictions laws would apply to online defamation cases. Doing so may provide some level of protection for speakers, who would be able to better determine in advance of any litigation where they could be held liable for their communications. The use of specific community creates some potential complications in Internet cases. First, it is possible to craft the definition of comm unity in such a way that it creates small, insular groups for whom certain statements may have si gnificantly different mean ings than they would in the community at large. This concern was recognized in 1986 by a New York trial court, which ruled that the proper community in a defamation suit involving an Orthodox Jewish rabbi purportedly defamed by an article in Time was the magazines readers. Focusing on the national magazines readers, as opposed to the rabbis sma ll enclave, the court said takes into account the bigger picture as to the meaning of the wo rds in the eyes of the average reader. In its decision, the c ourt made an interesting observati on about reputation and community: 85 See Rapp 944 So.2d at 466. 86 Id. at 465. 87 Id.
250 While it is obvious that a person can only be in jured in his community, i.e., with those who know him personally or by reputa tion, the corollary is also tr ue that a person cannot be injured by the feelings of those he does not know and will never meet.88 Certainly it is plausible in the age of the Intern et to imagine that a person can suffer injury from the statements of a person he does not know and may never meet. With the rise of MySpace, Facebook and You Tube, it is certa inly possible for a person to launch an assault on another having never met the defamed party. In such a cont ext, it is hard to believe that the defamed party could never be injured as a result of this conduct. Another likely difficulty of recognizing sp ecific communities for the purpose of online defamation is the implication it could have for de terminations of plaintiff status. In small subcommunities, it seems the likelihoo d that a plaintiff would be a public figure within that small community increases. Conversel y, should the courts decide to recognize a more global community in online defamation cases, it may beco me very difficult for anyone to obtain publicfigure status. Plaintiff status: Ease of access to the Internet One of the hallmarks of a public figure, as established by the U.S. Supreme Court in Gertz, is access to the media. In fact, the high court stated: The first remedy of any victime [sic] of defamation is self-help using available opportunities to contradict the lie or correct the e rror and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communi cation and hence have a more realistic opportunity to counteract false statements then private individuals normally enjoy.89 Although it is still true that a private person may be less likely to call a press conference and expect the traditional medias attendance and s ubsequent publication of a rebuttal to defamation, it hardly seems to follow that a private person wo uld be unable to access the Internet to respond 88 Id. 89 Gertz 418 U.S. at 344.
251 to defamatory communications leveled at him onlin e. First, the Internet may level the playing field somewhat by putting the power of the rebu ttal megaphone in the plaintiffs hand whereas traditional rebuttal often concentrates the power of reply in the hands of the institutionalized press. And even though it would be impossible to assure that a victim co uld reach all those who encountered a defamatory comment published via th e Internet, the odds are likely greater given ability to respond quickly and the worldwide re ach of the Internet. With any counter to defamation, the rebuttal audience is likely to be an incomplete representation of the original consuming audience, and this seems to be ev en more the case for plaintiffs defamed by newspaper, television stations and live speakers. In fact, given the highly specialized audiences present on the Internet, it may be easier to ta rget the original consuming audience of any defamatory communication. As a highly unrestric ted medium, the Internet certainly offers a private person the comparable ability to rebut de famatory allegations as the traditional mediums allow for public officials and public figures. Further, it gives the plaintiff a better shot at replying in kind using the same forum and same manner of communication, which is unlikely to happen in the traditional media. For example, a newspape r correction buried inside the paper can hardly compare to a front-page story that runs above the fold. Using ch atrooms, e-mail, blogs and Web sites, though, the defamed is more likely to be able to control the placement of the rebuttal. As discussed in Chapter 5, courts have slowly seemed to recognize the Internets power to amplify an individual speakers me ssage, often examining a plainti ffs Internet use prior to the alleged online defamation to determine whether a plaintiff is a limited-pu rpose public figure. For example, in one case, a Tennessee appellate co urt noted, as a factor supporting limited-purpose public figure status, the plaintiffs use of an Internet newsgroup to make claims about his skills
252 prior to the occurrence of the defama tory communications being posted online.90 Similarly, a corporations use of its Web site to promote a pr oduct was used by a California appellate court to justify the companys status as a public fi gure in an online defamation case stemming from comments about that product.91 It seems quite possible that a plaintiffs previous use of the Internet may become a significant factor as courts determine access to the media, which ultimately plays a role in establishing plaintiff status. In addition to having the poten tial to change how courts view limited-purpose public figures, the Internet also has the potential to imp act whether plaintiffs are considered all-purpose public figures. All-purpose public figures, defi ned in Gertz as those people who occupy positions of such persuasive power and influence that they are deemed public figures for all purposes,92 are categorized as such based on their wi despread notoriety. The Internet, with its e-mail, instant messaging and real-time ability to share information to a nearly unlimited number of people across vast geographic spaces, cr eates the opportunity for a nobody to become a somebody nearly overnight. Traditio nally, it has taken time and e ffort for someone usually a celebrity or athlete to become an all-purpose public figure. In Buckley v. Little, the Second Circuit goes to great lengths to characterize the numerous actions taken by well-known conservative columnist William F. Buckley befo re finding him to be an all-purpose public figure.93 However, courts may soon have to answer whether a person can become an all-purpose 90 See Hibdon 195 S.W.3d at 48. 91 See Ampex Corp. 27 Cal.Rptr.3d at 863. 92 Id. 93 Buckley, 539 F.2d at 885. From the time Buckley first wrote his book God and Man at Yale he has inspired considerable comment and he has been much in the public eye, founding in 1955 and editing The National Review which in 1968-69 as a fortnightly had a circulation of about 100,000 copies per issue and has an even larger circulation now. Since 1964 Buckley has been th e author of a syndicated newspaper column, On the Right appearing three times weekly in 250 newspapers in 1968-69 and in about 350 newspapers today. Beyond this he has a weekly television show entitled Firing Line carried first by commercial television and subsequently by public
253 public figure via the Internet in a short time, ba sed purely on someone elses action a question similar to the one they have struggled to deal with when categorizing pl aintiffs as involuntary public figures. What First Amendment Theories Are Important When Courts Try to Define the Notions of Community, Harm and Plaintiff Status in Online Defamation Cases? As discussed in Chapter 3, U.S. courts do not singularly rely on one First Amendment theory to protect speech. Instead, the combination of marketplace of ideas, checking value, selfgovernance and self-fulfillment theo ries play a role in American jurisprudence. Thus, it seems only natural that a multitude of theories would come into play in the courts Internet jurisprudence as well. Although the courts may not explicitly mention any particular theory in their online defamation cases, many of the ideas underlying the theories discussed in Chapter 3 can be found in online defamation cases. Marketplace of ideas Originating in the writings of John Milton94 and John Stuart Mill,95 the concept of a marketplace of ideas has become the First Am endment theory most relied upon by the U.S. Supreme Court. The theory, as it has developed, essentially posits that in a market of competing ideas, the notions of truth, or their closest appr oximations, shall rise to the surface through a broadcasting and radio. The evidence is that his column, On the Right was the third most widely-sold column of political commentary in 1968 and 1969 and is second only to Jack Anderson's column today. Buckley is a lecturer, the author of a number of books and articles, and was chairman and part owner of the Star Broadcasting group, which owns radio and television st ations and a book publishing company. He was the unsuccessful Conservative Party candidate for mayor of New York in 1965 and served for three years on an advisory committee of the United States Information Agency; in 1973 he was a public member of the United States delegation to the 28th General Assembly of the United Nations. At one time he was also a candidate for the Yale University Board of Trustees. He is a frequent guest on televi sion and radio programs and is recently a successful novelist. Id. at 885-886. 94 See JOHN MILTON, AEROPAGITICA (J. Suffolk ed., 1968) (1644). 95 See JOHN STUART MILL, ON LIBERTY (D. Spitz ed., 1975) (1859).
254 robust exchange of ideas. Not surprisingly, courts have often linked the marketplace theory to Internet cases. In ACLU v. Reno a federal trial court viewed the eas e of access to the Internet, and the lack of gatekeepers, as an opening up of the ma rketplace of ideas, which facilitates speech from non-mainstream speakers: In the medium of cyberspace, however, anyone can build a soap box out of [W]eb pages and speak her mind in the virtual village green to an audience larger and more diverse than any the Framers could have imagined. In many respects, unconventional messages compete equally with the speech of mainstream speakers in the marketplace of ideas that is the Internet, certainly more than in most other media.96 Courts must also recognize that, as a virtual village green, the Internets large and diverse audience will greatly affect the tort of defama tion, which once focused on speech distributed in a somewhat limited manner. Communities that we re once small and insular can now have farreaching access on a global spectrum. As the Delaware Superior Court noted: [S]peakers on [I]nternet chat rooms and blogs can speak directly to other people with similar interests. A person in Alaska can have a conversation with a person in Japan about beekeeping in Bangladesh, just as easily as several Smyrna residents can have a conversation about Smyrna politics.97 Reputation, then, it would seem, becomes not merely how your neighbor down the street perceives you, but also how the person acro ss the globe with whom you regularly conduct business also perceives you. In a global marketpl ace, it is possible that injury to a persons reputation means more than possibly losing his jo b in the community in which he lives. With nearly instantaneous worldwide communication, it could mean that he is no longer employable within his field. Thus, the marketplace of ideas theory, working in conjun ction with the courts recognition of an international marketplace, would weigh heavily in favor of a more global 96 Reno 31 F. Supp.2d at 476. 97 Cahill, 884 A.2d at 456.
255 framework for the definition of community in online defamation cases. Using a global framework would not require that the community consist of ever y single person in the world; instead it may be that the global community look s at an international version of a specific community. Such a framework for community was envisioned, if not implemented, by the Florida appellate court in Rapp v. Jews for Jesus, where the court realized that others of the Jewish faith may have thought less of the plaintiff after an organizations We b site published that she had accepted Jesus as her savior The courts have also recognized the role play ed by the Internet in allowing a variety of speakers to contribute to the debate on public issues. One federal tr ial court noted the benefits of the Internet in contrast to limitations presented by the traditional mainstream mediums: Despite the protection provide d by the First Amendment, unconventional speakers are often limited in their ability to promote such speech in the marketplace by the costs or logistics of reaching the masses, hence, the adage that freedom of the press is limited to those who own one.98 Viewing the Internet as the mass communicatio n medium of the average person seems to suggest, given the courts reliance on access to me dia as a criterion in th e public-figure analysis, that as more people become regular speakers on the Internet, more plaintiffs will also be categorized as limited-purpose public figures in online defamation cases: As a threshold matter, we note the enormous impact of the Internet on commerce and the marketplace of ideas. Indeed, [f]rom the publis hers' point of view, [t he World Wide Web] constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. Such broad access to the public carries with it the potenti al to influence thought a nd opinion on a grand scale.99 98 Reno 31 F. Supp.2d at 476. 99 Oja v. U.S. Army Corps of Engineers 440 F.3d 1122, 1129 (9th Cir. 2006) ( quoting Reno, 521 U.S. at 844).
256 The ability to influence thought and opinion also brings along with it the ability to cause significant harm on a much larger scale. The D.C. district court recognized this concern as it began to deal with the intricacies of creating jurisprudence for the new medium: The near instantaneous possibilities for the dissemination of information by millions of different information providers around the wo rld to those with access to computers and thus to the Internet have created ever-i ncreasing opportunities fo r the exchange of information and ideas in cyberspace. This information revolution has also presented unprecedented challenges relating to rights of privacy and reputational rights of individuals, to the control of obscene a nd pornographic materials, and to competition among journalists and news organizations for instant news, rumors and other information that is communicated so quickly that it is too often uncheck ed and unverified. Needless to say, the legal rules that will govern this new medium are just beginning to take shape.100 As courts continue to consider harm as it applies in online defamation cases, the marketplace of ideas theory would suggest that courts must weigh the harm cau sed by speech online against the value of providing a new medium in which the everyday person can communicate to the world in much the same fashion as the institutiona l media. As the Ninth Circuit observed: [T]he publication of defamatory and private in formation on the web has the potential to be vastly more offensive and harmful than it might otherwise be in a more circumscribed publication. Accordingly, in search of cogent principles, we compare the Internet to other media with great care.101 To properly gauge the injury to reputation caus ed by online defamation, the courts will likely have to discuss the notions of defama tory meaning and the opinion privilege102 in cyberspace. Much of this marketplace jurisp rudence recognizes si gnificant differences between the Internet and traditional mediums, suggesting the courts mi ght find theoretical supp ort should they decide 100 See Blumenthal 992 F. Supp. at 44. 101 Oja, 440 F.3d at 1129. 102 Opinion speech, speech that does not contain false factua l assertions, is protected from liability by the First Amendment, a doctrine that is rooted in the fair comment protection in common law. See Milkovich, 497 U.S. at 20-22.
257 to craft different parameters for online defama tion than for traditional print and broadcast defamation. Self-governance, checking val ue and self-fulfillment Many of the decisions discussing the role of the Internet in the marketplace of ideas also draw on concepts popularized by other First Amendm ent theories that could be used as support should the courts eventually craft unique rules for online defamation cases. The Delaware Superior Court, for example, has recognized th e value the Internet ha s in a self-governing society: The [I]nternet is a unique democratizing me dium unlike anything that has come before. The advent of the [I]nternet dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate.103 Again, one could argue that thos e who participate in public deba te via the Internet are more likely to become limited-purpose public figures by availing themselves of a medium that allows for nearly instantaneous rebuttal while serving as a global bully pulpit for the discussion of matters of public concern. Additionally, recent decisi ons have noted the potential of the Internet to create informed citizens the very goal to which Justice Brennan spoke in Times v. Sullivan and to which the courts, including the Fourth Ci rcuit, have alluded in subsequent defamation cases: The Internet allows unparallel ed access to information, ther eby enhancing opportunities for freedom of expression and holding tremendous promise for virtua lly all types of research.104 Furthermore, the Third Circuit has recognized the ab ility of the Internet to shift power away from the traditionally dominant parties the media, big business, government and allow citizens to 103 Cahill 884 A.2d at 455. 104 Urofsky 216 F.3d at 433.
258 be heard on issues in much the same way that Jerome Barrons right of access to the media would have: Recognizing the potential for vi ewpoint dissemination, politic al groups have taken their message to the Internet en masse. Media watchdo g sites provide an alternative to a specific political view in significant numbers. Internet news sites have spr outed specifically to provide independent, local news Finally, interactive possibilities on the Internet such as message boards and chat rooms permit virtua lly unlimited viewpoint dissemination from a multitude of independent sources.105 Such a shift in the power st ructure of communication can be evidenced by the number of defamation lawsuits that now p it large corporations against fo rmer employees or John Doe defendants.106 As Lyrissa Lidsky noted in her 2000 article: Moreover, John Doe's online comments can have real-world effects. While the financial bulletin boards ordinarily give notice to subscribers that the messages posted are merely the opinions of the author and that they s hould not be relied on to trade, people do, of course, use them to trade. If John Doe is a scr upulous critic of a part icular corporation and its CEO, the Internet is a powerful tool for him to begin a dialogue about the corporation and to convey his criticisms to a receptive audience.107 Thus, the assessment of harm may too have to change, as simply measuring the economic damage caused by an individual to a corporation ma y no longer be the most viable way to gauge actual injury to reputati on in a global community. Future Research This dissertation summarized and analyzed how U.S. courts define community, harm and plaintiff status in defamation cases. It began by looking at the courts a pproach to traditional print and broadcast defamation and concluded by looking at more recent cases involving online defamation. Because courts are only beginning to address these issues in the area of online 105 See Prometheus Radio Project v. F.C.C., 373 F.3d 372, 467-468 (3rd Cir. 2004). 106 See Lidsky, supra note 1, at 880-885. 107 Id. at 884.
259 defamation, the potential for future research is gr eat given the large number of viable research questions remaining, including: Are any characteristics (profession, Internet sa vvy, subject matter, e ducation level, age) more likely than others to play a role in th e courts determination of plaintiff status in online defamation cases? Are plaintiffs more likely to be considered public figures in online defamation cases than in traditional defamation cases? Are there any correlations between courts approaches to jurisdictional questions in online defamation and their approaches to defi ning community in online defamation cases? How does the economic harm suffered by victims of online defamation compare to that suffered by victims of traditional defamation? How does the reputational harm suffered by victims of online defamation compare to that suffered by victims of traditional defamation? These research questions invol ve various methodologies th at would build on the legal methodology used in this disserta tion. Although this study relied solely on legal research, that is analyzing cases, future research could include both quantitative and qualitative methods. Surveys of libel defendants and plaintiffs as well as quan titative content analysis of court decisions could provide data for quantit ative research. Qualitative methods could include focus groups and indepth interviews with those involved in defamation litigation. Expanding the scope of the research to incl ude other elements and factors common to defamation cases could also be useful. Research c ould be done to analyze the application of the single publication rule108 in traditional print and broadcast defamation cases versus online defamation cases. Similarly one might look at how c ourts have applied statut es of limitations to both traditional and online defamation cases. 108 The single publication rule limits the plaintiff in a libel suit to one clai m for each mass publication, not for every book or copy in a press run. See BLACKS LAW DICTIONARY (8th ed. 2004).
260 Because online defamation cases involve sp eech that crosses traditional geographic borders, there is great potential for international research. Some of the key court cases involving the Internet, although beyond the scope of this di ssertation, have been decided by courts in England, Australia and other c ountries. Those decisions pr ovide some indication that international law may some day play a strong ro le in deciding online defamation cases. Thus, looking at online defamation cases in othe r countries may prove instructive. Conclusion As discussed in Chapter One, the Internet has become a large component of our nations mass communication media. By 2007, it was esti mated that 334.5 million North Americans were using the Internet, which represents about 69 percent of the population.109 Thus, it is not surprising that online defamation cases have al so become a component, albeit recent, of our nations defamation litigation.110 The courts have slowly begun to grapple with the complexities of Internet defamation, including dealing with ju risdictional issues and anonymous speech issues in cases where they have crafted a different se t of rules for the new medium. More recently, courts have begun to address other definitional issues, including community, harm and plaintiff status. Most notably, it appears th at some courts have begun to r ecognize the implications of the Internet on the definitions of community, plaintiff status and harm in online defamation cases although many courts continue to use the rule s created in traditional print and broadcast defamation cases. The courts recent jurisp rudence in online defamation and the First 109 See Internet Users and Population Stats for the Americas. In ternet World Stats: Usage and Population Statistics, at www.internetworldstats.com (Last modified March 19, 2007). 110 For the most part, Internet defamation cases are a developm ent of the past decade, with the courts first beginning to address online defamation in the 1990s. See, e.g. Cubby 776 F. Supp. at 135; Stratton Oakmont unpublished at 1995 WL 323710; Zeran 129 F.3d at 327.
261 Amendment perspectives incorporated by the courts in other Internet expression cases seems to leave room to create a new framework for online defamation.
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276 BIOGRAPHICAL SKETCH Amy Kristin Sanders is a licensed attorney a nd a member of the Fl orida and Missouri bar associations. While researchi ng and writing her dissertation, sh e worked as a copy editor and page designer for The Gainesville Sun a 50,000-circulation New Yo rk Times Company daily newspaper. Amy holds a Bachelor of Arts in journalism and a Bachelor of Science in justice systems from Truman State Universi ty, Missouris public liber al arts and sciences university. She graduated from the University of Iowa College of Law and earned a Master of Arts in professional jo urnalism from the University of Iowa School of Journalism. Upon completion of her Ph.D., Amy will begin work as an assistant professor of mass communication at the University of Minnesota School of Journalism and Mass Communication in September 2007.