The cost of speech

Libels laws are outmoded and increasingly dangerous, for they threaten to chill and silence the voice of the public even as we finally have our forum to speak: the internet.

Oh, I know that some would argue we need libel laws now more than ever because, thanks to the internet, anybody can say anything about anyone. See a £17,200 libel award just granted to a politician against a Yahoo user who called him a “lard brain,” a “nazi,” and much worse. See the John Siegenthaler Sr. case in Wikipedia, in which one misfit inserted a scurrilous and ludicrous charge against him into his encylopedia biography as much hand-wringing ensued. And see this list of legal actions against bloggers in the U.S., including Banks v. Milum, the first known blogging case to go to trial; the blogger lost, to the tune of $50,000.

I say we need libels laws less today. Law professor and blogger Susan Crawford once suggested over coffee (and I hope she doesn’t mind my continued quoting of this) that libel laws are out-of-date in a time when the victims of defamation have the means of response via the internet that they never had in print or broadcast. Keep in mind that in America, where we treasure free speech to an admirable and fanatical degree — the FCC and its indecency policing excepted — we are luckier than most. It is harder to bring a successful libel action here. And Section 230 protects hosts of interactivity from actions against them as a result of content put on their services by others. Britain and other nations aren’t so lucky.

So the fear of litigation and loss is starting to pile up. And my fear, in turn, is that this gives counsel to media and technology companies as well as individual citizens the world around the arguments to kill interaction and citizens media just as they come into their own — because they are becoming just too risky. It is already gutsy to host Comment is Free; when does it become too gutsy? I dread returning to a world of centralized, controlled, filtered, and official content. We, the citizens, will lose our voice because no one will want to risk speaking or letting us speak.

This is a certainly case of throwing the baby out with the bathwater. Consider Wikipedia: Because just one fool added something foolish there, is that sufficient reason to discard more than one million articles filled with generous human knowledge? If one twit leaves an insult in one blog comment on is that cause to shut off the conversation there? Do we want a world where anyone can tell horrible lies about anyone? Of course, not. But do we also want a world where our courts are clogged with efforts to mediate playground fits of name-calling (fits that few people hear, by the way)? Do we need the courts to confirm for us that the bozo ranting in the corner is, indeed, a bozo? Rarely. But these few episodes of bad temper have given the internet cultural cooties: Interaction is judged on the actions of the few twits and not on the value of empowering the people as a whole to speak.

One response to this is education. We need to offer the practitioners of citizens’ media and interactivity help in understanding how to protect themselves in libel, defamation, and other legal issues. In the U.S., I’m about to work with some people who will, at long last, bring such help online. (Law bloggers be warned: I’ll soon be appealing for your help.)

But the real response must be to update the law for an entirely different media world controlled by everyone and not by the few. If that happens through the courts, the damage done in the meantime will be crippling or, in some cases, fatal for interactivity.

We need to effect change legislatively — and not just to libel law but to any law that regulates speech. I have little hope of that happening on its own. After all, politicians are often the objects — often deservedly — of much of the ire expressed by citizens online. In New Jersey, a state legislator proposed a law to require internet services, including online newspapers, to obtain verified names and addresses of commenters or face the liability for anything they say. He said he wanted to bring civility to this nasty internet; one wonders why he hasn’t wanted to outlaw shouting at football games. But the bill was hooted down by bloggers as absurd, unenforceable, and unconstitutional and the lawmaker slunk away.

Let’s say we actually found an intelligent lawmaker with the courage to defend free speech and try to change the law. He or she would be accused of defending internet horrors. It’s quite like the problem of the Federal Communications Commission and its indecency fines against Howard Stern, Janet Jackson, and words starting with F or S: Anyone who tries to stand up and fight for the First Amendment and free speech will be portrayed as the friend of smut.

So how do we give cover to lawmakers and politicians to stand up for — or at least not stand in the way of — the right of people to speak through this new medium? How do we get them to govern for the rule, not the exeception? How do we update the law to understand the new world of connectivity and conversation? There are no easy, immediate answers. But if we do not begin the discussion, we will leave the fate of the internet interactivity to the litigious.

So I would like to see a summit on the principles of the law and speech and interactivity in the internet age. Before we recast the laws, we must understand what is at stake and what we are trying to protect — as well as what we no longer need the law to protect. Because we need to have this discussion at that level, I think it needs to be a worldwide meeting of great legal minds and advocates of interactivity as well as the companies — media, telecommunications, online — who fear that it is their deep pockets at stake. It can happen in a hotel or it can happen online. Any takers?

: LATER: Geanne Rosenberg, head of the journalism program at CUNY’s Baruch and an attorney to boot, said this about that:

Media companies have been united in opposing libel actions for many years (through MLRC [Media Law Research Center], formerly LDRC) in part to make it very difficult for plaintiffs’ lawyers to succeed and thus to really discourage lawyers from taking on libel cases. If bloggers, their insurance companies and other non-media company defendants start losing cases and/or paying out settlements, that will actually help to fund what could quickly mushroom into a force of plaintiffs’ lawyers eager to take on these cases, cases that would have become potentially lucrative as a result of any payouts. So the risk you raise is very real. There’s also a risk that careless postings by bloggers that lead to litigation could also result in legal decisions that set precedents damaging to free speech/free press interests. So the risk is two-fold — harmful legal precedents and a new funding source for lawyers bringing libel suits.

  • Jim Dermitt

    I guess it’s really a moral issue and you just can’t measure morality. What is thoughtless to one person is illegal to another. When I troll the web looking for something I check twice and buy once. That is how I do woodwork. I always try to measure twice and cut once. People have different ideas about things. Declan McCullagh had a good piece on this sort of thing in January.

    Commentary–Annoying someone via the Internet is now a federal crime.
    “To grease the rails for this idea, Sen. Arlen Specter, a Pennsylvania Republican, and the section’s other sponsors slipped it into an unrelated, must-pass bill to fund the Department of Justice.”

    Big Brother is watching. They are having $1,000 a plate dinner tonight here to raise money for Sen. Rick Santorum. The President is coming to town. I wonder if Arlen will show up to keep the guests informed.

  • Who decides what’s annoying?

  • Jim Dermitt

    Maybe the Dept. of Homeland Security has an Annoying Unit.
    You are sitting there blogging and federal shock troops surround the house. The jackboots kick in the door and say take your hands off the keyboard.
    If you got a warrant, I guess your going to come in. They don’t need a no stinking warrant! They caught you red handed being annoying in violation of the G-Censor rules. Corporate America is just like China, which is also annoying. Google is annoying but people are making boat loads of money.
    They are moving towards a Google that knows more about you. That annoys me.

  • Well, let’s remember what the standard of proof is for winning a libel case before we decide to throw it all out.

    Merely proving that the information was false is not sufficient.

    The plaintiff has to prove that the publisher knew that the information was false, or acted in a reckless fashion in publishing it. He also has to prove actual damages.

    And public figures — politicians, actors, etc. — are excluded from making claims.

    It’s not like you just file a complaint and collect the check.

    Requiring people to be responsible for what they publish — whether their professional journalists or not — is not an unreasonable expectation.

    And if it discourages some people from posting stuff because they don’t have the good sense to check their facts, well perhaps that’s not such a bad thing.

    In case you haven’t noticed, there’s an awful lot of crap floating around out there on the Internet.

  • I.F. Stoner

    JBLOG, you are well intentioned but ALL WRONG about your understanding of libel law.

    First, the fault standard of “Actual Malice” (knowing falsity or reckless disregard) is not always applicable.

    Second, that is a legal standard found only in the US and a few rare other countries– the Internet is global and laws of other nations may apply.

    Third, no case anywhere holds that “public figures are excluded from making claims.” None. This is dangerously incorrect. They may (in the US) have to meet the higher fault standard of “Actual Malice” but they can and do bring claims all the time. And not just for the sake of winning but because the horrific cost of defending a libel case may break a small publisher or webmaster. Ask Lyle Stuart, who was put in bankrutpcy after being sued by casino builder Steve Wynn.

    Are libell laws outdated? Maybe. Can the rich and powerful “counter” false speech my merely creating a blog or holding a press conference? Perhaps. But you have to know what the rules are before you break them. Too many journalists and bloggers do not know the rules.

  • Sorry, IF, I was speaking solely from the perspective of U.S. law, and from that perspective I believe my comments are reasonably accurate, including in reference to public figures. I’m aware that the rules vary in other countries.

    As to the cost of defending libel suits, even most small publishers can afford insurance to cover this — the weezy little weekly newspaper I started at certainly could and did.

    As for the rules regarding libel, I would suggest that anyone who is in the habit of publishing provocative statements in a public forum would be well-advised to know them.

  • Michael

    I would argue that people are publicly libeled more often now than ever, so the rise in libel cases simply reflects that fact.

    Everyone loves the “Nazi” quote in the story Jeff links to, but the linkers always seem to miss that the defendant had said publicly that the plaintiff was a convicted sex offender!

    I chuckled when I read the comment above about Lyle Stuart: he was found guilty, so of course the cost was “horrific.” (The Nevada Supreme Court later threw out the verdict, but only because of “improper jury instructions.) BTW, Stuart has made a career out of walking the line, and has been sued before and since, so it could be argued that he knew what he was doing and its potential consequences.

  • I.F. Stoner

    I’m not saying Lyle Stuart deserved (or didn’t) deserve it, but the reality is that libel cases are crushingly expensive to defend. (And a techo nit here, one is not “guilty” of libel in the US, they are liable– it’s a civil wrong, not a criminal wrong).

    And your comments about public figures aren’t quite right. They are not “excluded” from making claims. Ray Donovan, Barry Bonds, The Donald….all are libel plaintiffs. They may not win, but they DO have standing to sue.

    We seem to agree, though, that posters/bloggers/webbies need to know the rules…whether it’s right to break them is another discussion…

  • jvd

    Most people just want to be helpful when they can.
    They aren’t sitting around wondering about the rules.
    They are out there leading their lives. People need to know the rules and I’m sure you will be there to explain them. They’ll tune you out.

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  • Kat

    What bloggers need to learn is what MSM engages in–politically correct journalism. They toed the line on the mohammed cartoon capers by avoiding publishing the cartoons for fear of being fatwaed. MSM is afraid to use the word terrorist. In America is is fear of being accused of libel. They can learn from CAIR which files more libel suits than Planters has peanuts. It’s a great way to intimidate critics and they have the millions to fight their cases that critics don’t. And now the battleground changes–bloggers must be intimidated and muzzled –just like MSM. Libel is wrong if it is truly libel, but charging that something is libel simply because it doesn’t support your thinking or your agenda, is wrong, also. When we started regulating ‘hate speech’ we started down a slippery slope. Yes, bloggers need to learn the rules–political correctness. “You change people’s behavior simply by bringing the lawsuit.”

  • I have used in the past to find lawyers in my area!

  • Jeff

    In regard to the Lyle Stuart case, it should be noted that the judge remanded the case for retrial with the “improper jury instructions” ruling as a move to save face. Virtually all of the judges in Nevada had a financial connection to Wynn. The initial trial was very unfair. The judge ended up in a tricky situation when all of the nation’s major news organizations got together and filed an amicus brief on behalf of Lyle Stuart/Barricade Books. With the eye of the national media trained on the appeal a crooked verdict wouldn’t be easily upheld. The jury instructions ruling allowed the judge an out to the sticky situation. Note that once the case was remanded for retrial Wynn did not move to bring the case back before the court.