TCS Daily

The Future of Internet Speech

By Eugene Volokh - December 5, 2002 12:00 AM

Some states have laws that give special protection to some forms of media - in particular, by protecting them from libel liability if they promptly publish a retraction (or if the plaintiff fails to demand such a retraction). Should Internet speech, from Slate to weblogs to chat room postings, get the same protection?

Cyberspace speech is generally entitled to the same First Amendment protections as speech in newspapers or magazines. If the New York Times can say it, so can Slate, and so can your Fray postings.

But statutory protections that go beyond what the First Amendment requires are a different matter, precisely because they are given only by the grace of the state legislature, with boundaries set forth by the legislature. The question is what the words of the statute call for - though a court may interpret the words in light of policy arguments about equal treatment and medium independence.

The Georgia Supreme Court has just held that the Georgia retraction statute does apply to Internet speech (specifically, to posts on a Web-based discussion group). (Mathis v. Cannon, No. S02G0361, Nov. 25.) The statute, Ga. Stat. Ann. § 51-5-11, protects defendants from punitive damages if they promptly and prominently publish a retraction "in a regular issue of the newspaper or other publication in question." (They may still be liable for compensatory damages.) The court held that "other publication" includes Internet publications, and didn't respond to the dissent's argument that the "regular issue" language excludes occasional Web posts, which don't come in periodical "issues."

What's more, the court justified its position not just by referring to the specific terms of the statute, but also by appealing to broader principles:

Our reasons for preferring this broader reading are many. . . . It encourages defamation victims to seek self-help, their first remedy . . . . It eliminates the difficult task of determining what is a "written publication" and who is the "print media" at a time when any individual with a computer can become a publisher. It supports free speech by extending the same protection to the private individual who speaks on matters of public concern as newspapers and other members of the press now enjoy. In short, it strikes a balance in favor of "uninhibited, robust, and wide-open" debate in an age of communications when "anyone, anywhere in the world, with access to the Internet" can address a worldwide audience of readers in cyberspace.

Courts in other states may well find this reasoning influential in interpreting their own statutes.

Of course, some courts may disagree with this approach, especially if the statutory text seems inconsistent with it. Thus, a Wisconsin intermediate appellate court held several years ago that a state retraction statute that protected "periodical[s]" didn't apply to posts on Web-based chatrooms. (It's in the Cards v. Fuschetto, 535 N.W.2d 11 (Wis. App. 1995).) Slate might still be protected by this statute, but other forms of Internet speech may not be.

Isn't this sort of discrimination between some media ("periodicals") and other media, well, discriminatory? Yes, it is, but courts have held that legislatures have considerable latitude in discriminating, even among media, so long as their discrimination is based only on the medium, and is neutral as to the content and viewpoint of the speech. So it's unlikely that medium-specific retraction statutes will be struck down as unconstitutionally discriminatory - but not unlikely that they'll be read broadly by courts such as the Georgia Supreme Court.

What about other special statutory media privileges, such as protections for reporters who are called to disclose their sources? If I'm called to testify about something in California court, can I say that I was planning to post something about it on my periodically updated weblog, and avoid punishment for contempt of court under Cal. Evid. Code § 1070:

A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt . . . for refusing to disclose . . . the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

What about press credentials-can I get a seat in the Supreme Court area reserved for journalists on the grounds that I'm a weblogger? Can Glenn Reynolds, who has a readership in the tens of thousands? Can Tom Goldstein, who runs a weblog devoted to Supreme Court issues? When millions are in some sense part of the media, who decides who gets media privileges? Right now, no-one knows for sure.

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