THE WEB DIFFERENCE: A NON-CDA-230 RATIONALE AGAINST LIABILITY
FOR ONLINE REPRODUCTION OF THIRD-PARTY DEFAMATORY CONTENT
Matt C. Sanchez
I.
II.
V.
VI.
INTRODUCTION
TRADITIONAL REPRODUCTION LAW
a.
OVERVIEW
b.
PRIVILEGES
1.
FAIR REPORT PRIVILEGE
2.
NEUTRAL REPORTAGE PRIVILEGE
3.
WIRE SERVICE DEFENSE
THE WEB DIFFERENCE
a.
THE EQUIVALENCE MYTH
b.
THE UNIQUE BENEFITS OF ONLINE SPEECH AND ONLINE REPRODUCTION
c.
FUNDAMENTAL DIFFERENCES BETWEEN ONLINE AND OFFLINE SPEAKERS
1.
ABILITY TO ASCERTAIN THE DEFAMATORY NATURE OF SPEECH
2.
DEFAMATION SUITS' ENHANCED SUPPRESSIVE EFFECT ON ONLINE
SPEECH
THE NEED FOR A BRIGHT LINE RULE OF IMMUNITY
a.
PROFESSIONAL VERSUS NON-PROFESSIONAL SPEAKERS
b.
FORM OF REPRODUCTION
c.
SUBJECT OF REPRODUCTION
d.
KNOWLEDGE AND NOTICE
CONCERNS ABOUT DEFAMED INDIVIDUALS' ABILITY TO SEEK REDRESS
CONCLUSION
I.
INTRODUCTION
III.
IV.
[The Supreme Court has] recognized the need in certain instances to forbid otherwise valid
defamation claims to proceed if allowing them might discourage citizens and the media from
expressing themselves freely on matters of public concern.1
The First Amendment states that “no law” can be made that restricts the freedom of speech.
Historically, we know this is not the case. Courts have found that the Constitution allows some
restrictions on speech, typically where the restrictions deal with a narrow set of “low value” speech
forms.2 In order to satisfy the First Amendment, laws that restrict these types of speech still must pass
1
2
Martin F. Hansen, “Fact, Opinion, and Consensus: The Verifiability of Allegedly Defamatory Speech,” 62 GEO. WASH.
L. REV. 43, 47 (1993) (discussing New York Times Co. v. Sullivan, 84 U.S. 254, 269-70 (1964)).
The basic list of low-value speech forms was laid out by the Supreme Court in Chaplinsky v. State of New Hampshire,
315 U.S. 568 (1942) (“These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’
words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”).
Matt C. Sanchez
msanchez@law.harvard.edu
a Constitutional inquiry in order to ensure they do not unduly restrict freedom of speech as a whole.3
The relevant question when discussing a restriction on speech is whether the harm arising from
the speech is so compelling and the value of the speech so low that suppressing the speech does not
offend the First Amendment. Stated differently, the First Amendment tolerates restrictions when the
speech's potential harm outweighs its social benefits – a high bar given the favored place of free speech
in American society. The evolution of defamation law reflects this balancing analysis, 4 as exceptions to
defamation liability have arisen where speech has higher value.5 In some cases, the public value of
receiving defamatory speech – or, often more importantly, speech that may have been suppressed by
over-restrictive defamation laws – outweighs any resulting harm.6
Under traditional defamation law, there is little distinction between the originator of a
defamatory statement and a party that repeats that statement.7 For the most part, anyone who
reproduces a given defamatory statement, regardless of context, is equally liable. However, the advent
of online speech has upended the concept of reproduction8 liability. Specifically, a single piece of
legislation – section 230 of The Communications Decency Act (“the CDA”)9 – largely precludes
liability for online reproduction of defamatory content.10 This has elicited much consternation from
See Sullivan, 84 U.S. 254, 269-70 (“[Restrictions on] libel can claim no talismanic immunity from constitutional
limitations. [They] must be measured by standards that satisfy the First Amendment.”).
4 Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 135-36 (1986) (“The evolution of the law of defamation
reflects the tension between society's competing interests in encouraging the free flow of information ... and in
protecting an individual's reputation.”).
5 There are a number of common law and statutory privileges that exempt defamatory speech from liability in certain
situations, particularly in the case of reproduced defamatory speech. For a discussion of a few representative examples,
see section IV(a)-(d) of this paper, infra.
6 Id.
7 See section IV of this paper, infra.
8 This paper uses the term “reproduce” and its derivations to encompass the various ways in which one party can repeat
the speech of another – whether it is vocalizing a third-party statement, quoting a third-party speaker in a newspaper, or
reprinting an entire news article on a blog. This is to avoid using words such as “publish,” “distribute,” and “transmit”
that have become terms of art in the context of communications law. The use of “reproduce” as a comprehensive term
reflects the difficulty if not impossibility of applying the aforementioned traditional-media terms to the varied arena of
online speech. In situations where this paper uses “republish” and other such terms, it uses them specifically to refer to
the established legal concepts they typically represent.
9 47 U.S.C. § 230.
10 Barrett v. Rosenthal, 146 P.3d 510, 529 (Ca. 2006)(“[The CDA offers] [t]he prospect of blanket immunity for those who
intentionally redistribute defamatory statements on the Internet.”).
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Matt C. Sanchez
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some courts and commentators, who argue that it makes no sense to provide immunity for online
activities that would result in liability if carried out offline.11 Perhaps the primary reason for this
outrage is that there is little normative rationale included within the CDA's language as to why the law
should distinguish between what might appear to be the identical reproductive actions of online and
offline speakers.12
This paper steps away from the CDA in order to supply the missing rationale behind it, offering
a normative argument as to why online reproduction is different from offline speech13 such that it
frustrates traditional standards of liability. In the arguments below, this paper will show why Internet
speakers should be immune from liability for reproducing defamatory content14 regardless of where
interpretations of the CDA ultimately lead. In brief, this paper argues that restriction of online
reproduction is inappropriate because online reproduction is of significant value even when
defamatory. This is coupled with the fact that online reproduction as a whole is particularly susceptible
to the chilling effect of litigation and legal threats, shifting the First Amendment balance in favor of
protection in order to preserve its benefits.
Section II of this paper lays out the parameters of traditional reproduction law, noting several
11 See, e.g., Id. at 529 (citing concerns about online reproduction immunity under the CDA while upholding it when
applied to an Internet user who reproduced defamatory e-mails); Melissa A. Troiano, Comment, "The New Journalism?
Why Traditional Defamation Laws Should Apply to Internet Blogs," 55 AM. U. L. REV. 1447, 1468-9 (2006)
(“[Immunity would] allow[] information that could not be published in a newspaper to be purposefully placed on a blog
with no repercussions.”).
12 That is, any normative rationale on this specific point. The CDA does state a goal of protecting the development of the
Internet and praise the online world as “a forum for a true diversity of political discourse, unique opportunities for
cultural development, and myriad avenues for intellectual activity.” See 47 U.S.C. § 230 (a)(3) & (b)(1).
13 For simplicity's sake, this paper will use terms such as “offline speech” and “traditional speech” to refer to non-Internet
equivalents of online speech – that is, print and broadcast speech. The spoken word is outside the scope of this
discussion. In other words, offline speech consists of non-Internet speech that would be subject to libel law, rather than
slander law. See n.17, infra, for further discussion of why discussion of slander generally is not relevant to discussions
involving online speech.
14 This paper will focus on forms of reproduction in which the reproducer makes an affirmative choice to engage in
reproduction, such as when a blogger quoting a defamatory third party statement. This is contrast to situations where
liability is sought for alleged reproducers who did not make such a choice – often referred to as“intermediary liability”
– such as when a blogger is sued for statements posted by a third party into the blog's comments section. Such
situations present a significantly easier case for immunity given the lack of editorial action from the alleged reproducer.
Because of this, the question of intermediary liability should be adequately covered by the standard of immunity
proposed here.
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Matt C. Sanchez
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common-law reproduction privileges that offer a conceptual foundation for online reproduction
immunity. Section III discusses the unique characteristics of online speech and online reproduction. In
doing so, Section III shows why online reproduction benefits the public dialogue even when
defamatory and why these benefits would be unduly restricted by the chilling effect of litigation.
Section IV addresses problems with several possible exceptions to immunity in order to show that a
standard of absolute immunity is the only solution that will adequately preserve online reproduction's
benefits. Section V briefly discusses why concerns about reproduction immunity's affect on defamed
individuals’ ability to seek redress are overstated and do not tip the First Amendment balance away
from protection.
II.
TRADITIONAL REPRODUCTION LAW
a.
OVERVIEW
The traditional standard of reproduction liability is that "one who repeats or otherwise
republishes defamatory matter is subject to liability as if he had originally published it,"15 or, to put it
more simply, “talebearers are as bad as talemakers.”16 Thus, reproducing defamatory17 content exposes
a speaker to liability regardless of whether the speaker had a hand in creating the content.
The central rationale behind reproduction liability is that libelous reproductions harm a defamed
individual to the same extent as the original defamatory message.18 The law takes for granted that
reproductions of defamatory content offer little value to the public, following the common law
15 Restatement (Second) of Torts §578 (1977).
16 Barry v. Time, Inc., 584 F. Supp. 1110, 1122 (N.D. Cal. 1984).
17 In the online context, “defamation” and “libel” have become synonymous. At this point it seems established that libel
laws, to the limited extent that they differ from slander laws, dictate defamation disputes online. Thus, while this paper
will use the general term “defamation” in most cases, pursuant to conventions of online speech discussion, the term is
interchangeable here with “libel.” See, e.g., Ryan Lex, “Can MySpace Turn Into My Lawsuit?: The Application of
Defamation Law to Online Social Networks,” 28 LOY. L.A. ENT. L. REV. 47, 52-3 (2007-2008); Zeran v. Am. Online,
Inc., 129 F.3d 327 (4th Cir. 1997); Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).
18 Condit v. Dunne, 317 F. Supp. 2d 344, 363 (S.D. N.Y. 2004) ("The reason for this rule is that republication of false facts
threatens the target's reputation as much as does the original publication.").
4
principle that defamatory messages have little or no speech value.19
Matt C. Sanchez
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The result is the impression that
the harm suffered by defamed individuals outweighs the minimal free speech benefits of reproduction,
making liability appropriate.
Traditional analysis of reproduction liability qualifies this concept by distinguishing between
three possible types of reproducers: “publishers,” “distributors,” and “common carriers.” Traditionally,
publishers of content – such as individual speakers, print media publications, broadcast companies, and
so forth – are the only reproducers who face liability. This is because rupublishers of third-party
defamatory content are said to “publish” the content just as the original speaker did. Under traditional
reproduction law, each reproduction of a defamatory statement by a publisher constitutes a separate
instance of publication for the purposes of defamation liability.20 Distributors and common carriers,
such as newsstand operators and telephone companies, respectively, traditionally are immune from
liability unless they have knowledge that the content is defamatory.21
The CDA holds that online reproducers cannot be treated as publishers and speakers of thirdparty defamatory content and thus are not subject to liability. Opponents argue that this is a
nonsensical result in cases where online reproducers' actions are similar to those of traditional
reproducers. This paper asserts that this argument is moot. The following discussions will treat online
reproducers as publishers and speakers of allegedly defamatory content and will show why holding
them liable under even that higher standard would violate the First Amendment.
It generally is not a defense to liability that the reproducer did nothing more than repeat
someone else's statement, even where the reproducer notes specifically that it merely is repeating the
19 Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942) (“[Defamatory statements] are of such slight social
value ... that any benefit that may be derived from them is clearly outweighed by the social interest in order and
morality.”). But see New York Times Co. v. Sullivan, 376 U.S. 254 n.19 (1964) (“Even a false statement may be deemed
to make a valuable contribution to public debate....”).
20 1 Law of Defamation § 4:87 (2d ed.).
21 Restatement (Second) of Torts §581 (1977) (“[O]ne who only delivers or transmits defamatory matter published by a
third person is subject to liability if, but only if, he knows or has reason to know of its defamatory character.”).
5
statement.22
Matt C. Sanchez
msanchez@law.harvard.edu
Upon reproduction the reproducer is said to “adopt as his own” the defamatory
statement.23 Aside from the exceptions for distributors and common carriers, then, the reproduction
liability analysis is essentially the same as if it were an analysis of an original defamation claim.
Reproduction analysis differs from original defamation liability, however, in that there are a
number of common law and statutory privileges that negate liability for the reproduction of defamatory
speech, some of which confer absolute immunity upon the speaker.24 These privileges are evidence of
a tension that exists within defamation law – they mark occasions in which the First Amendment
benefits of certain reproductions of defamatory material are sufficient to counterbalance the targets'
right to seek redress for the harm they may suffer as a result. The following subsections discuss some
of these privileges and shows how they affect First Amendment balancing.
b.
PRIVILEGES
1.
FAIR REPORT PRIVILEGE
The fair report privilege is a common law and in some jurisdictions statutory25 privilege that
precludes defamation liability for speakers who “fairly and accurately report certain types of official or
governmental action.”26 This means that speakers are not held liable for reproducing the defamatory
statements of legislators, parties to judicial proceedings, and other actors involved in official or
government activities. The fair report privilege was developed in order to insure that information
regarding official activities is made available to the public.27 Nearly all public knowledge about the
workings of government is derived from the efforts of news organizations and others who reproduce
22 Id. (“Liability for repetition of a libel may not be avoided by the mere expedient of adding the truthful caveat that one
heard the statement from somebody else.”).
23 Id.; Flowers v. Carville, 310 F.3d 1118, 1122-3 (9th Cir. 2002) (“The law deems the repeater to 'adopt as his own' the
defamatory statement.”).
24 Restatement (Second) of Torts §583-612. For further information on common law and statutory privileges, see section
II(b) of this paper, infra.
25 See, e.g., N.D. Cent. Code § 14-02-05; Ohio Rev. Code Ann. § 2317.05.
26 22 A.L.R.6th 553 at §8 (listing cases that have recognized the fair report privilege).
27 22 A.L.R.6th 553 at §8.
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and describe official statements.28
The fair report privilege itself is an extension of the absolute privilege afforded to the actors in
official proceedings. Federal and state legislators enjoy an absolute privilege to speak or publish
defamatory matter during the course of their legislative duties, regardless of whether the defamatory
matter is related to matters of legislative concern.29 The same privilege often extends to members of
local and subordinate legislative bodies, such as city councils and county boards, though this varies by
jurisdiction.30 Similarly, statements made in a judicial proceeding by parties thereof – including the
judge and the parties' counsel – are privileged so long as they are relevant to the dispute at issue.31
Other protected statements include those made by police officers during the course of their duties,32
certain forms of military communications,33 certain forms of business communications,34 and
accusations of criminal conduct by those involved in criminal investigations.35 Under fair report,
reproductions of these statements are privileged.
The primary qualification of the fair report privilege is that the reproducer is limited to
reporting the fact of the assertion.36 The reproducer cannot assert the truth of the assertion or otherwise
make factual statements supporting the truth of the assertion on her own authority and still enjoy
absolute privilege. Stated differently, the reproducer may not “adopt[] the defamatory statement as its
own.”37
Other restrictions of the privilege vary by jurisdiction. Some jurisdictions deny application of
28 Michael M. Conway et al., “The Illinois Supreme Court and the 'Fair Report' Privilege: A Free-Press Victory,” 94 ILL.
B.J. 414, 414 (2006).
29 Restatement (Second) of Torts, § 590.
30 Id.
31 50 Am. Jur. 2d Libel and Slander § 279.
32 Id. at § 273.
33 Id. at § 293.
34 Id. at § 306-310.
35 Id. at § 296.
36 155 A.L.R. 1346 (“[A] publisher must not declare on his own authority the existence of facts which are only asserted in
the proceedings; he is limited to reporting the fact of the assertion.”).
37 50 Am. Jur. 2d Libel and Slander § 305.
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the privilege where the speaker has actual malice in reproducing the information.38 The other common
restriction is to preclude extension of the privilege when the report as a whole is not substantially
correct or substantially accurate overall.39
The recent trend in fair report litigation has been an expansion of the privilege to nearly all
statements made by government officials or in government documents.40 The privilege has shown a
tendency to expand in other ways, such as toward including statements of foreign government actors.41
The trend toward expansion is common to defamation and reproduction law exceptions, as the
following subsections show.
2.
NEUTRAL REPORTAGE PRIVILEGE
The neutral reportage privilege is a natural extension of the fair report privilege, providing
immunity from defamation liability for reproductions of certain statements made about public figures.42
The initial formulation of the privilege required speech to meet five criteria in order to qualify. 43 First,
the origin speech must have been made by a “responsible organization.”44 Second, the speech must
have been targeted at a public figure. Third, the speech must have been made under circumstances
where “a raging and newsworthy controversy exists.” Fourth, the reproduction of the speech must be
“accurate and disinterested.” Fifth, the origin speech must constitute a “serious charge” against the
public figure.
38 See, e.g., Riemers v. Grand Forks Herald, 688 N.W.2d 167 (N.D. 2004).
39 See, e.g., Salvo v. Ottaway Newspapers, Inc., 782 N.E.2d 535 (Mass.App.Ct. 2003); Gupta v. The Lima News, 744
N.E.2d 1207 (3d Dist. Allen County 2000).
40 See David A. Anderson, “Rethinking Defamation,” 48 ARIZ. L. REV. 1047, 1051-2 (2006); Mich. Comp. Laws Ann. §
600.2911(3) (2004) (expanding the privilege to any “governmental notice, announcement, written or recorded report or
record generally available to the public”); Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993)
(expanding the privilege to unofficial statements made by members of Congress); Medico v. Time, Inc., 643 F.2d 134,
140 (3d Cir. 1981) (expanding the privilege to statements in FBI files).
41 Kyu Ho Youm, “Republication of Foreign Government Statements: The Fair Report Privilege in U.S. Libel Law
Reexamined,”6 COMM. L. & POL'Y 393 (2001).
42 50 Am. Jur. 2d Libel and Slander § 295.
43 See 13 A.L.R.6th 111 (2006).
44 Courts have offered little guidance as to what constitutes a “responsible organization,” but recognized examples include
the National Audubon Society (Edwards v. National Audubon Soc., Inc., 556 F.2d 113 (2d Cir. 1977)), a law firm
(Coliniatis v. Dimas, 965 F. Supp. 511 (S.D.N.Y. 1997)), and a sheriff (April v. Reflector-Herald, Inc., 546 N.E.2d 466,
(Ohio Ct. App. 1988)).
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The privilege is a common law doctrine first developed in the Second Circuit case Edwards v.
National Audubon Society, Inc.45 The court in Edwards determined that the New York Times was not
liable for defamation after accurately reproducing possibly defamatory accusations made by the
National Audubon Society against various scientists. The court did not consider malice46 as it would
have in a typical defamation case; unlike the fair report privilege and common law defamation, the
neutral reportage privilege has no malice component. The privilege protects reproductions even if the
reproducer was aware that elements of the origin speech were false or defamatory.47
The rationale behind neutral reportage is that it is newsworthy when reputable speakers make
accusations against public speakers. The fact that such an accusation has been made is newsworthy
regardless of the truth of the accusation.48 To borrow a hypothetical situation, imagine that President
George W. Bush holds a news conference in which he accuses Vice President Dick Cheney of
accepting bribes from a large and influential corporation.49 Immediately following the conference,
Bush informs those in attendance that the accusations were false and that he only had made them in
order to rouse public sentiment to help him to get rid of Cheney. Since those in attendance then would
know the accusations were false, they probably would face liability under the Sullivan50 actual malice
standard if they reprint them. Absent the neutral reportage privilege, the president's attempt to discredit
the vice president likely would go unreported.
There has been some opposition to the neutral report privilege, primarily from courts and
45 556 F.2d 113 (2d.Cir. 1977).
46 Since the scientists were public figures, they would have had to prove that the New York Times published the
statements with “actual malice” in order to prevail on a defamation claim. Actual malice means the speaker either
knew the statements were false or showed reckless disregard as to whether the statements were false. See Sullivan, 376
U.S. 254.
47 13 A.L.R.6th 111 (2006) (“[N]eutral reportage ... shields from liability republishers who accurately and disinterestedly
report certain defamatory statements, regardless of the republisher's subjective awareness of the truth or falsity of the
accusation.”).
48 Edwards, 556 F.2d at 120 (“What is newsworthy about such accusations is that they were made.”).
49 Michael Huber, “Edwards v. Audubon Society Twenty-Five Years Later: Whatever Happened to Neutral Reportage?”
20-SPG COMM. LAW. 15, 15 (2002) (attributing the hypothetical to Alan H. Fein, speaker at the seventh annual
conference of the American Bar Association's Forum on Communications Law, February 14-16, 2002, in Boca Raton,
Florida.).
50 Sullivan, 376 U.S. 254.
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commentators who believe the privilege protects speech that does not have sufficient First Amendment
merit to tip the balance away from liability.51 A primary point of contention is the lack of a malice
analysis under Sullivan, which does not allow a weeding-out of more egregious cases.52 It is worth
noting, however, that Sullivan merely establishes that actual malice must be proved as a threshold issue
before a public figure can succeed on a defamation claim; it does not assert as a normative matter that
public figures must be able to succeed on any defamation claim in which they have proven actual
malice.
Despite the controversy, courts have moved to expand the neutral report privilege on almost all
of the five original criteria. A number of courts have applied or discussed the propriety of applying the
privilege to situations in which the speech at issue targeted private persons, rather than public figures.53
Similarly, some courts have found that the public figure requirement can be satisfied when the target is
involved in public controversy or has a sufficient connection to public programs or issues, regardless of
whether the target inherently is a public person.54 There has been a movement to expand the
“responsible organization” requirement to any prominent party to a controversy55 or even to speakers
who are “unprominent” or “unresponsible.”56 Courts have expanded this requirement in order to avoid
the chilling effect on speech that would occur if reproducers were forced to make a determination of
51 See Norton v. Glenn, 860 A.2d 48, 58-9 (Pa. 2004); James E. Stewart & Laurie J. Michaelson, “Reining in the Neutral
Reportage Privilege,” 17-SUM COMM.LAW. 13 (1999); David A. Elder, “Truth, Accuracy and Neutral Reportage:
Beheading the Media Jabberwock's Attempts to Circumvent New York Times v. Sullivan,” 9 VAND. J. ENT. & TECH. L.
551 (2007).
52 See, e.g., Dickey v. CBS Inc., 583 F.2d 1221, (3d Cir. 1978) (“[F]or libel against a public figure to be proved, '(t)here
must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth
of his publication ... which demonstrates actual malice.”) (quoting St. Amant v. Thomas, 390 U.S. at 727 (1968))
(declining to adopt the neutral reportage privilege).
53 Barry v. Time, Inc., 584 F. Supp. 1110, 1127 n.20 (N.D. Cal. 1984) (noting a possible public interest in charges made by
reputable organizations and individuals against private persons because of the corresponding “insight into the defamer's
character.”); Krauss v. Champaign News Gazette, Inc., 375 N.E.2d 1362, 1363-64 (Ill. App. Ct. 1978) (finding the
privilege to include reportage of “information relating to public issues, personalities, or programs,” including
statements about a psychologist who was a government contractor.). Contra Khawar v. Globe Int'l, Ltd., 965 P.2d 696,
706 (Cal. 1998) (stating that most courts apply the privilege only to public figures).
54 Krauss, 375 N.E.2d 1362, 1363-64; April v. Reflector-Herald, Inc., 546 N.E.2d 466 (Ohio Ct. App. 1988).
55 Ward v. News Group Int'l, Ltd., 733 F. Supp. 83, 84-85 (C.D. Cal. 1990); Barry v. Time, Inc., 584 F. Supp. 1110, 112528 (N.D. Cal. 1984).
56 In re United Press Int'l, 106 B.R. 323, 329-30 n.16 (D.D.C. 1989).
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the original speaker's level of trustworthiness or prominence and to face defamation liability if they
chose wrong.57 Courts also have viewed the “raging controversy” standard more expansively, finding
that a preexisting newsworthy controversy is sufficient.58 One court has rejected the preexistence
requirement as well, extending the privilege to all issues that are “serious and newsworthy.”59 Under
this view, application of the privilege is based upon the public's interest in receiving the information.60
Take note of this last point, because it foreshadows a modern trend toward expanding the “public
figure” doctrine to take into account the ways that online speech has changed the meaning of concepts
such as “newsworthiness” and “issues of public concern.”61
3.
WIRE SERVICE DEFENSE
The common-law “wire service” defense mandates that publications may not be held liable for
defamation arising from news they republish from certain reputable sources.62 The defense primarily
has applied to news republished from wire services, includes the Associated Press and United Press
International. To give an example, the defense protects newspapers from liability for republishing an
Associated Press article that later is found to be defamatory. This is the case so long as the news
qualifies as “apparently authentic,” a standard that asks the reproducing entity to undertake the
following duties:
[W]hen a local media organization receives a wire service release, it has a duty to read the
release to ensure that the face of the story itself does not contain any inconsistencies. The
local media organization also has a duty to refrain from publishing the news story if the
news organization knows the story is false or if the release itself contains unexplained
57 See, e.g., Barry, 584 F.Supp. at 1126 (“[I]t could create a chilling effect on the members of the press if they were
required to be the arbiters of how 'trustworthy' a source is.”).
58 Barry, 584 F. Supp. at 1126-27 (N.D. Cal. 1984) (requiring merely an “existing controversy”); In re United Press Int'l,
106 B.R. 323, 330-31 & n.19 (D.D.C. 1989) (rejecting requirement of a “raging” controversy). See Elder, 9 VAND. J.
ENT. & TECH. L. at 682 (2007).
59 United Press Int'l, 106 B.R. at 330-31 & n.19 (1989).
60 Elder, 9 VAND. J. ENT. & TECH. L. at 682 (2007) (discussing United Press Int'l, 106 B.R. 323).
61 See section IV(c) of this paper, infra.
62 Layne v. Tribune Co., 146 So. 234, 238 (1933).
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inconsistencies. The local media organization does not have a duty, however, to
independently verify the accuracy of the wire service release.63
The rationale of the wire service defense is that, absent such a protection, it would be
prohibitively difficult if not impossible for publications to include news from outside their primary
locale.64 Publications would be deterred from publishing news stories except in cases where they could
afford to have their own reporters investigate all relevant facts. Smaller publications in particular
would be relegated to covering a limited scope of local news topics and national or local “fluff” pieces
of little substance.65 Indeed, it is difficult to imagine how both wire services and small publications
that purport to offer any sort of national coverage could operate if publications were required to
independently verify all facts included in wire service content.66 Such a result severely would restrict
the dialogue around issues of wide public interest.67
The wire service defense has matured into a strong protection for republished speech. Even
after the Supreme Court established malice- and negligence-based defamation standards for speech
targeted at public figures68 and private individuals,69 respectively, courts have limited liability under the
wire defense to cases in which the plaintiff can prove the defendant had knowledge the disputed
content was defamatory.70 Courts have found that publishers' reliance on wire services obviates the
63 Brown v. Courier Herald Pub. Co., Inc., 700 F. Supp. 534, 537 (S.D. Ga. 1988).
64 James E. Boasberg, “With Malice Toward None: A New Look at Defamatory Republication and Neutral Reportage,” 13
HASTINGS COMM. & ENT. L.J. 455, 458-9 (1991). See Layne, 146 So. at 239 (“No newspaper could afford to warrant
the absolute authenticity of every item of its news, nor assume in advance the burden of specially verifying every item
of news reported to it by established news gathering agencies, and continue to [publish promptly, if at all].”).
65 Appleby v. Daily Hampshire Gazette, 478 N.E.2d 721, 725 (1985) (“[B]ecause verification would be time-consuming
and expensive, imposing such a burden would probably force smaller publishers to confine themselves to stories about
purely local events.”); Boasberg, 13 HASTINGS COMM. & ENT. L.J. at 458.
66 Boasberg, 13 HASTINGS COMM. & ENT. L.J. at 459 (“It is arguable that a contrary ruling would have crippled both wire
services and small papers of a national bent, leaving the field of national news reporting exclusively to the largest
papers and thereby narrowing the spectrum of comment and criticism.”).
67 Id.
68 Sullivan, 376 U.S. 254 (1964).
69 Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974).
70 Boasberg, 13 HASTINGS COMM. & ENT. L.J. at 462 (“[A]ny liability is predicated on the republisher's knowledge of the
story's falsehood ....”).
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possibility of malice71 or even negligence72 absent this knowledge.73
It is worth noting that the wire service defense is not limited to wire services.74 The defense
was originally formulated to encompass all “generally recognized reliable source[s]”75 of news. It is
not the category of the source the matters but rather the source's reputation as a disseminator of
trustworthy information.76 When a source has such a reputation, it is reasonable for a speaker to rely
on that reputation when deciding whether or not to reproduce content from the source. At least one
court has determined explicitly that the wire service defense protects materials reproduced from other
reputable sources.77 In that case, a Newsweek author had relied on information taken from the
Washington Post, the Miami Herald, and the New York Daily News.78
The wide acceptance of the wire service defense has prompted at least one commentator to
suggest that the general rule burdening “republishers” with liability should be abolished. 79 Taken as a
whole, the fair report, neutral reportage, and wire service defenses show that there are a number of
compelling reasons to limit reproduction liability. Further, they show that the law is willing to engage
in limitation where reproduction law would suppress valuable speech. The following section explains
why online reproduction is a form of valuable speech that would be unduly restricted by reproduction
71 Waskow v. Associated Press, 462 F.2d 1173, 1176 (D.C. Cir. 1972) (“Newspaper editors have no cause to doubt the
accuracy of a major wire service dispatch, absent an apparent inconsistency or other indication of error.”); Boasberg, 13
HASTINGS COMM. & ENT. L.J. at 459.
72 Appleby, 478 N.E.2d at 725 (“[I]n ordinary circumstances, no jury could reasonably find that a newspaper had acted
negligently in relying on the accuracy of a story from a reputable wire service.”); Boasberg, 13 HASTINGS COMM. &
ENT. L.J. at 460-3.
73 While this standard is similar to the Sullivan “actual malice” standard, it differs in a key respect: one can trigger actual
malice without knowledge if one had a “reckless disregard” for the truth or falsity of a statement. For purposes of
actual malice, one is treated as having knowledge if one should have had knowledge. Under the wire service defense, it
seems that reliance on reputable news sources obviates the possibility that one had “reckless disregard.”
74 See Boasberg, 458-466 (tracing history, application, and interpretation of the wire service defense).
75 Layne, 146 So. at 238.
76 See generally Boasberg, 13 HASTINGS COMM. & ENT. L.J. 455.
77 Nelson v. Associated Press, 667 F. Supp. 1468, 1475 (S.D. Fla. 1987). See Boasberg, 13 HASTINGS COMM. & ENT. L.J.
at 463 (“[Under Nelson,] the original publisher can be “'reliable periodicals'” or “'newspapers,'” not just wire
services.”) (emphasis in the original).
78 Nelson, 667 F. Supp. 1468.
79 Jennifer L. Del Medico, “Are Talebearers Really as Bad as Talemakers?: Rethinking Republisher Liability in an
Information Age,” 31 FORDHAM URB. L.J. 1409, 1412 (2004) (arguing for a presumption in favor of republication that
may be defeated only by a showing of actual malice).
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liability.
III.
THE WEB DIFFERENCE
a.
THE EQUIVALENCE MYTH
The prevailing theme among opponents of immunity for online reproduction and other
defamation-related torts is that online speech is functionally identical to traditional media speech.80
Commentators ask why we should let an online speaker get away with doing something that we punish
a traditional speaker for doing offline. The answer is that people are doing things online that differ
fundamentally from anything has been done before – and, moreover, that the average online speaker
and the average traditional speaker are different entities. In order to adequately protect free speech, the
law must recognize that most online speakers are not traditional media entities and are not engaged in
traditional-media-like speech.81
Reproduction of third-party material on the Internet is not the same as republication under
traditional media law. That is not to say that no instances are the same; when the New York Times
reproduces a third-party statement in its online edition the situation is little different than when the
Times does so in its print edition. Instead, the difference between online and offline reproduction lies
in the sheer variety of online reproduction and the altered balance of power across the distribution of
online speech. While citizen speech was the exception in the traditional media world, it is the rule on
the Internet.
80 Troiano, 55 AM. U. L. REV. at 1465 (“[D]efamatory speech should not be protected in some instances just because the
defamer disseminated the message through one medium, but then not protected when the same speech is transmitted
through a different medium.”); Jae Hong Lee, Note, “Bazel v. Smith & Barrett V. Rosenthal: Defamation Liability for
Third-Party Content on the Internet,” 19 BERKELEY TECH. L.J. 469, 488 (2004) (“[T]he Internet, while unique in many
respects, is not so exceptional as to require a complete departure from traditional defamation law.”); Brittan Heller,
Note, “Of Legal Rights and Moral Wrongs: A Case Study of Internet Defamation,” 19 YALE J.L. & FEMINISM 279
(2007) (“[W]hat is impermissible in the real world should not be permitted in the virtual world.”).
81 Aaron Perzanowski, Comment, “Relative Access to Corrective Speech: A New Test for Requiring Actual Malice,” 94
CAL. L. REV. 833, 836 (2006) (“[C]urrent defamation doctrine draws no distinction between [online speakers] ... and
traditional media outlets .... [It] accounts for variety among plaintiffs but ignores diversity among possible
defendants.”).
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Offline speech is dominated by “a relatively small number of powerful speakers.”82 Aside from
the occasional activist pamphlet or other form of citizen publication, offline speech comes from
newspapers, magazines, broadcast organizations, publishing agencies, and other traditional media
entities. The average traditional speaker thus can be imagined as an average-sized traditional media
entity. Similarly, the bulk of traditionally reproduced speech takes one of two primary forms. One
occurs when a media entity's publication of a third-party statement within an article or broadcast, such
as when a magazine article includes a quote from a politician. The other occurs when an organization
republishes an entire third-party speech work, such as when a local newspaper reprints an article from a
national paper.
Because of this homogeneity, traditional reproduction law sensibly propagates a standard of
liability based upon the attributes of mainstream media speakers and speech. When the third-party
speech at issue is defamatory, the law assumes that these forms of reproduction have insufficient value
to counterbalance the harmed suffered by defamed individuals, except in situations where a particular
privilege is warranted.83 The law assumes that free speech as a whole will not be unduly restricted by
liability because the bulk of traditional speakers – the traditional media – have enough resources and
legal savvy such that the threat of suit will not unduly deter them from reproducing information.
Online speech, in contrast, is not so narrow. The average online speaker is, essentially, the
average citizen.84 Traditional media entities are by far the minority online. Blogs alone vastly
outnumber traditional media entities: blog tracking and rating website Technorati monitors 112.8
million blogs,85 and it is doubtful that number encompasses all blogs. Added to this are speakers such
as individuals with personal home pages, posters on online discussion boards, news aggregators, and a
82 Lyrissa Barnett Lidsky, “Silencing John Doe: Defamation and Discourse in Cyberspace,” 49 DUKE L.J. 855, 894 &
n.204.
83 See section II(b) of this paper, supra.
84 For instance, blogs “are typically run by small, unincorporated individuals.” Sean P. Trende, “Defamation, AntiSLAPP Legislation, and the Blogosphere: New Solutions for an Old Problem,” 44 DUQ. L. REV. 607, 608 (2006).
85 http://www.technorati.com/about/ (last accessed April 04, 2008).
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host of other examples. In comparison, there were approximately 43,000 magazines86 and 10,000 daily
newspapers87 in print worldwide as of 2005 – and not all of these publications have an online presence.
To put those numbers in perspective, the country of Iran alone is home to 60,000 routinely updated
blogs.88
When applied to the realm of online speech, the assumptions made by traditional reproduction
law are false. Online reproduction as a class has more value to the public dialogue than does traditional
reproduction, even when the reproduction is defamatory.89 Equally importantly, speech as a whole
would suffer greatly if online reproduction liability were the rule, because the citizens that make up the
majority of online speakers are far more likely than traditional media entities to self-censor their speech
for fear of lawsuit.90
b.
THE UNIQUE BENEFITS OF ONLINE SPEECH AND ONLINE REPRODUCTION
Immunity from liability for online reproduction is appropriate first and foremost because online
reproduction offers significant value to society even when defamatory. Defamatory traditional
reproduction, though generally considered to be of little value, is valuable enough to warrant protection
in certain circumstances;91 this is only more true of defamatory online reproduction. In order to fully
consider this point, it is worth exploring both the benefits of online speech as a whole and the particular
benefits of online reproduction.
86 IBM Institute for Business Value, Paper, “The End of Television as We Know It,” p.3 (2006) (available at http://www935.ibm.com/services/us/index.wss/ibvstudy/imc/a1023172?cntxt=a1000062) (citing unnamed International Federation
of the Periodical Press report).
87 World Association of Newspapers, Report, “World Press Trends 2006” (final ed.) (Jan. 2007) (available at
http://www.wan-press.org/IMG/doc/UPDATE-WPT2006-2-Final.doc); World Association of Newspapers, “Newspaper
Growth Defies Conventional Wisdom,” http://www.wan-press.org/article12949.html (Feb. 06, 2007) (noting that the
number of “paid-for” daily newspapers exceeded 10,000 for the first time; however, the combined number of paid-for
and free daily newspapers is nearly identical, according to the statistics from “World Press Trends 2006.”).
88 John Kelly & Bruce Etling, Paper, “Mapping Iran's Online Public: Politics and Culture in the Persian Blogosphere,”
The Berkman Center for Internet & Society at Harvard Law School, Research Publication No. 2008-01 at pg. 2
(available at
http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/Kelly&Etling_Mapping_Irans_Online_Public_2008.pdf).
89 See sections III(b) through IV of this paper, infra.
90 See section IV of this paper, infra.
91 See section II(b) of this paper, supra.
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The fact that the Internet has fundamentally expanded and enriched the realm of human
communications is so well-recognized that Congress has codified it into law.92 Online speech has not
merely expanded the public dialogue – it created the public dialogue as we know it today. The Internet
has produced unique forms of speech that offer unprecedented depth, breadth, diversity, timeliness,
connectivity, community-building, and wide-ranging access both in terms of citizens' ability to engage
in speech activities and their ability to obtain information.93
The Internet allows for the dissemination of views and issues lacking the popular interest to
support publication in mainstream media publications,94 and it allows for the dissemination of views
from speakers who previously had no outlet for their speech. Though the ubiquity of citizen speech
makes it easy to forget, it was not long ago that there was little opportunity for the speech of ordinary
citizens to reach the public at large in any meaningful way. Citizens could do little else other than
“stand on a corner and rant, post a sign, or write a newsletter, or pen a letter to the editor.”95 Now, any
citizen with access to the Internet can disseminate their views near-instantaneously in a format that
allows for global access. Conversely, any citizen with Internet access can seek out the views of other
citizens at will.
Online reproduction is inextricably intertwined with these speech benefits. The Internet
community is a linking and quoting culture; online communications are based in large part on the
process of spreading information from other sources. In particular, commentary on third-party speech
and action is the lifeblood of the online public dialogue.96
92 47 U.S.C. § 230(a)(1-3) (“The Internet] represent[s] an extraordinary advance in the availability of educational and
informational resources to our citizens.” ) (“The Internet ... offer[s] a forum for a true diversity of political discourse,
unique opportunities for cultural development, and myriad avenues for intellectual activity.”).
93 See generally DAN GILLMOR, WE THE MEDIA (paperback ed.) (2006).
94 See Susan W. Brenner, “Criminalizing 'Problematic' Speech Online,” 11 No. 1 J. INTERNET L. 3, 3 (2007) (“Speech that
would never have been published in an era when publication venues were dominated by the mainstream media (MSM)
can be widely disseminated by anyone who is so inclined.”). See also section IV(c) of this paper, infra.
95 WE THE MEDIA at 46.
96 See WE THE MEDIA at 194 (“'Most blogs involve linking to someone else's work and then commenting on it.'”) (quoting
Glenn Reynolds, professor of Internet law at the University of Tennessee and an influential political blogger as
“Instapundit”).
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Online commentary97 builds an immediate and robust public discussion around events. Once a
single actor introduces a piece of information into the online realm, online speakers begin to discuss
and disseminate it. They post links to the information on forums along with their opinions on the
matter. They cut-and-paste portions of the information directly into their blog posts, allowing them to
comment on each portion while providing the original alongside for reference. Through reproduction,
online speakers can undertake an in-depth critique of information confident that any reader unfamiliar
with the topic can familiarize themselves with the information in a matter of moments.
The “cut-and-paste” and “linking” styles of commentary are unlike anything that has existed
before. Traditional examples of commentary, such as op-ed columns and letters to the editor, are
woefully inadequate analogues. These allow only a trickle of public sentiment to infiltrate the media
world and offer little capacity for back-and-forth discussion.
Despite the online medium's premium on speed, online speech and reproduction also offers the
opportunity for more depth of commentary and discussion than the traditional media in some
situations. On issues that do not require timely action, online speakers can devote time to additional
research not possible under the deadline pressures of the traditional media.98 Online speakers can take
advantage of the ease of communication to collaborate with other speakers in order to produce detailed
content. This is true of “newsworthy” topics as well as topics ignored by the traditional media.99 The
increased accessibility allows individuals with particularlized knowledge on specific subjects to discuss
those subjects for the benefit of all.100
For an example of online commentary in action, imagine a citizen who reads a local newspaper
97 The term “online commentary” here encompasses a varied series of online speech activities that utilizes reproduced
content as a tool to inform public discourse. Online commentary occurs when citizens use the Internet to create a
discussion around the statements of others. There ar countless variations online commentary, with new forms of
technology and new types of online speech activities opening up new variations continuously.
98 WE THE MEDIA at 139.
99 Lidsky, 49 DUKE L.J. at 897 (“The Internet allows people to transcend the limits of geography in order to find those
with similar interests, and no topic is too obscure to generate Internet discussion.”).
100 D. Wes Sullenger, “Silencing the Blogosphere: A First Amendment Caution to Legislators Considering Using Blogs to
Communicate Directly With Constituents,” 13 RICH. J.L. & TECH. 15, 67 (2007) (“Blogs democratize journalism by
letting the People speak. This results in dissemination of expert opinions the public otherwise would not hear.”).
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article presenting accusations that her neighbor has engaged in illicit activities. The citizen is sure her
neighbor is innocent, and she has evidence. In the pre-Internet era, she could do little but alert the
newspaper and hope that it would print a follow-up article, issue a correction or retraction, or perhaps
allow her to write a letter to the editor. The public dialogue on the subject was one-sided and subject to
the newspaper's decision on how to proceed. The public's input generally was relegated to
neighborhood gossip.
But our citizen has more options. Immediately after reading the article she puts up a blog post
that scrutinizes the newspaper's evidence. She quotes passages from the article and offers a point-bypoint refutation. Soon, as many community members have learned about her information as had read
the news article – some who have read the blog themselves, some who have heard about it from others,
and some who have read about it in the resulting comments on the newspaper's web site.
Regardless of whether the community members believe the citizen or the newspaper, a more
comprehensive and connected public dialogue arises about the issue. Though the net result is an
increase in the dissemination of the defamatory material, the public is much better able to determine the
truth of the accusations than when the newspaper article was their sole reference. As Justice Holmes
famously said, “the best test of truth is the power of the thought to get itself accepted in the competition
of the market.101 With online speech, the public can achieve a healthy competition of ideas that
previously was unavailable when there was little middle ground between person-to-person contact and
traditional media broadcast.
It is true that the above example sits on the rosier side of the spectrum of Internet speech; a
reproducer just as easily could have heaped additional defamatory accusation upon the target
101 Abrams v. U.S., 250 U.S. 616, 630 (1919) (“[T]he ultimate good desired is better reached by free trade in ideas ... [thus]
the best test of truth is the power of the thought to get itself accepted in the competition of the market.”) (Holmes, J.,
dissenting). See also Sullivan, 376 U.S. at 270 (“The First Amendment, said Judge Learned Hand, ‘presupposes that
right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative
selection. To many this is, and always will be, folly; but we have staked upon it our all.’”) (quoting United States v.
Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y. 1943)).
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individual. This choice of example was intentional: under a strict interpretation of traditional
reproduction law, the Good Samaritan in the above example would be just as liable for defamation as
the newspaper that printed the defamatory article and the reproducer that added further insult. In such
a case, all discussion on an issue is suspended and the defamatory content lingers until a court of law
refutes it.
Suppression of public discussion is the central harm of online reproduction liability. Liability
for traditional reproduction is not as problematic, because it has less suppressive effect on speech. As
the following subsection discusses, the characteristics of online speech and speakers are such that
reproduction liability will and does have an unacceptable restrictive effect on citizens' right to speak.
c.
FUNDAMENTAL DIFFERENCES BETWEEN ONLINE AND OFFLINE SPEAKERS
As mentioned above, traditional reproduction law assumes controversies generally will arise
around the speech of traditional media speakers. Traditional reproduction law thus features a balancing
of free speech and defamatory harm based upon the minimal extent that the threat of liability would
restrict the speech of traditional media entities. But if we accept that the totality of online speakers is
composed differently from the totality of traditional media speakers, we must also accept that liability
might affect online speech differently than traditional speech. Compared to the average traditional
media speaker, the average Internet speaker is both less likely to be capable of satisfying traditional
reproduction law's requirements without suffering undue burden and more likely to be dissuaded from
speaking because of the threat of suit.
1.
ABILITY TO ASCERTAIN THE DEFAMATORY NATURE OF SPEECH
Under traditional media law, reproducers are treated essentially the same as original speakers
because they “adopt” third-party statements as their own when they choose to reproduce them.102 This
102 KENT D. STUCKEY, 2 INTERNET AND ONLINE LAW 32 (1996) (“Having reproduced and disseminated the defamatory
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reflects the editorial practices of the traditional media, where reproduced speech typically goes through
a review process carried out by media professionals before publication. Traditional media entities
make an effort to ascertain the truth of a statement – or, alternatively, they make an effort to ascertain
the trustworthiness of the statement's source or the original publisher. Once they are satisfied, they
reproduce the statement with their implied assurance of the statement's truth. Opponents of
reproduction immunity argue that online speakers are equally capable of making such
determinations.103 For several reasons, however, it would be an undue burden to require online
reproducers to make such determinations.
In general, traditional media outlets produce material well in advance of publication. Few
substantive newspaper articles are completed without a buffer of at least a number of hours –
sometimes a day or more – before printing, not counting the time during which the article is being
developed. Magazine articles and books may be completed months before they are published. This
gives an ample amount of time for editing, research, and contemplation, each of which increases the
amount of investigation into truth and defamatory character available before publication. Traditional
speakers typically also have the benefit of editors and other “second and third set[s] of eyes,” which
lowers the risk of publishing defamatory information.104 The average online speaker, in contrast,
typically operates on an abbreviated timeline. The lack of editorial bureaucracy allows citizens to
respond to events in a uniquely timely manner, but it also reduces the opportunity for investigation into
the truth of statements they reproduce. Requiring online reproducers to engage in a traditional-medialike editorial process would do much to curtail the immediate dialogue that arises because of online
statements with knowledge of what they say, print publishers are characterized by the courts as 'republishers' who have
'adopted' the statements as their own.”) (citing Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1298 (D.C. Cir.
1988)).
103 See, e.g., Troiano, 55 AM. U. L. REV. at 1479-80 (“[D]etermining what is and what is not a defamatory statement is
mainly a matter of common sense. Because bloggers individually choose what information to publish on their blogs,
bloggers could easily control what information to omit based on a message's defamatory nature.”).
104 WE THE MEDIA at 193-4 (quoting First Amendment lawyer David L. Marburger).
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speech.105
Even if required to do so, online speakers as a class could not manage the “Herculean
assignment” of verifying the facts contained in every piece of information they plan to reproduce. 106
Defamation claims are based upon assertions that are problematic only if false, but it rarely will be
practical for a citizen speaker to independently verify facts contained in third party statements. In this
way, citizens are extreme examples of the “small publications” that we do not expect to independently
verify statements they republish from reputable services.107 Defamatory nature is difficult enough to
ascertain for professional media organizations, which invest a considerable amount of time and money
into preventing and fighting defamation suits. For the average citizen, the burden is even higher.
One can consider this issue in the context of negligence, which is generally the minimum
requirement for defamation liability.108 A traditional media entity could be found negligent if it failed
to contact the original source of a statement, seek out additional sources, judge the trustworthiness of
these sources, conduct further investigation into the events surrounding the statement, or otherwise
attempt to ascertain the truth of the statement. To consider an average online speaker negligent for not
undertaking such activities would be simply ludicrous. Few individuals have the time or resources to
engage in such activities at all, much less to do so before reproducing any content on a blog or forum.
Worse, the average online speaker likely does not know the intricacies of defamation law, so she would
not know to take these precautions in any case.109
Because of these factors, online reproduction liability would force online speakers to refrain
from reproducing or discussing any third-party statements they could not back up with their own
105 Barrett, 146 P.3d at 525 (Ca. 2006).
106 Id. (“Requiring [online reproducers and speakers] to account for the nuances of common law defamation, and all the
various ways they might play out in the Internet environment, is a Herculean assignment that we are reluctant to
impose.”).
107 See discussion of the wire service defense, section II(b)(3) of this paper, supra.
108 A speaker must at least negligently disseminate a defamatory statement under the Gertz standard for defamation
targeted at private individuals. See Gertz, 418 U.S. 323.
109 Jennifer L. Peterson, “The Shifting Legal Landscape of Blogging,” 79-MAR WIS. LAW. 8, 10 (2006) (”[B]loggers ...
almost universally are not ... familiar with basic legal issues.”).
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evidence. Online speakers would tend to restrict their treatment of third-party statements to those they
can independently determine are factually true or that are so non-controversial as to negate the
likelihood of defamation claims. The result would be an unacceptable restriction of speech with great
costs to the public dialog.
2.
DEFAMATION LIABILITY'S ENHANCED SUPPRESSIVE EFFECT ON ONLINE SPEECH
Given the complexities of defamation law, any defamation lawsuit is “a daunting and expensive
challenge.”110 The peculiarities of defamation law allow juries to award large judgments without proof
of any harm.111 Because of the high costs involved in even the initial stages of legal proceedings,112 the
mere threat of a lawsuit may have as much deterrent effect on speech as the fear of an adverse
judgment.113 The punitive or deterrent effects of these costs sometimes are the primary motivation for
plaintiffs to file suit; a favored tactic of defamation plaintiffs is to burden defendants with an
“unnecessarily protracted and tangential” discovery process intended more to punish than to produce
information.114 Fear of such burdens produces a “cloud of censorship” that leads speakers to report less
110 Barrett, 146 P.3d at 525.
111 Gertz, 418 U.S. at 349 (“Juries [in defamation cases] may award substantial sums as compensation for supposed
damage to reputation without any proof that such harm actually occurred. [This] compounds the potential of any system
of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms.”).
112 To give an example, researchers as long as 20 years ago estimated the average attorneys' fees for media defamation
suits to be from over $90,000 to as high as $150,000, though smaller publishers' fees tend to fall in the lower range. See
Roselle L. Wissler, “Media Libel Litigation: A Search for More Effective Dispute Resolution,” 14 LAW & HUM. BEHAV.
469, 472 (1990) (“Attorneys' fees to defend a media libel suit are estimated to average $96,000.”); Seth Goodchild,
“Media Counteractions: Restoring the Balance to Modern Libel Law,” 75 GEO. L.J. 315, 322 (1986) (“[L]egal fees are
estimated to average $150,000 per defamation case.”) (“The chief [chilling effect] culprit is extensive discovery
involving an in-depth examination of a defendant's editorial process.”).
113 Washington Post v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966) (granting summary judgment to defendant newspaper in
libel action) (“[The] threat of being put to the defense of a lawsuit . . . may be as chilling to the exercise of First
Amendment freedoms as fear of the outcome of the lawsuit itself.”); Barrett, 146 P.3d at 525 (“We reject the argument
that the difficulty of prevailing on a defamation claim mitigates the deterrent effect of potential liability.”); McEvoy, 17
HASTINGS CONST. L.Q. at 505 (“Although most observers agree 'that the probability of an adverse judgment is small,'
the price of [defamation lawsuits] can be very high, not only in terms of attorney's fees and general litigation expenses,
but also through the disruption of families, physical illness and emotional upheaval.); Goodchild, 75 GEO. L.J. at 315-6
(1986) (“Because defamation cases [are] so expensive to defend, the possibility of high defense costs ... exerts
significant pressure on news organizations to engage in self-censorship rather than risk incurring staggering legal
fees.”).
114 See Herbert v. Lando, 441 U.S. 153, 205-206 (1978) (“Plaintiffs' pretrial maneuvers [in defamation cases] may be
fashioned more with an eye to deterrence or retaliation than to unearthing germane material.”) (Marshall, J.,
dissenting).
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aggressively or to avoid controversial topics.115
Litigation is as not as much of a burden on traditional media speech, given that professional
media speakers are better positioned to both avoid the risk of litigation and to deal with it when it
comes.116 Large media entities often will include litigation expenses in their budget in addition to
having in-house counsel who have experience with defamation law. Individual speakers within
traditional media entities have a certain amount of protection from fear of suit because they operate
under the knowledge that lawsuits against them almost certainly will be handled by their
organizations.117 Even so, the threat of suit has some deterrent effect on the media;118 the effect is
exacerbated when applied to less powerful speakers.119
One can conceptualize the preclusive effect of defamation liability as a continuum. At one
extreme are the largest media entities, who are the least dissuaded by the threat of suit. These speakers
115 M. Linda Dragas, Comment, “Curing a Bad Reputation: Reforming Defamation Law,” 17 U. HAW. L. REV. 113, 121-2
(“An increase in lawsuits seeking damages ... could hobble the media and have a chilling effect on freedom of
expression. The cloud of self-censorship might hover ominously over newsrooms, potentially resulting in less
aggressive reporting and in the avoidance of controversial topics.).
116 Sarah Trombley, “Visions and Revisions: Fanvids and Fair Use,” 25 CARDOZO ARTS & ENT. L.J. 647 (2007) (“[A large
corporation] may be able to withstand a lawsuit by a major media conglomerate – the ordinary citizen cannot.”)
(discussing aggressive copyright suits' chilling effect on citizens' speech and creative expression).
117 Indeed, it is exceedingly rare that a publication does not cover the cost of actions against its representatives. For
example, see the public outcry that arose when a judge mandated that neither USA Today nor anyone else could pay
reporter Toni Locy's fines after Locy refused to reveal the identity of her sources in an investigation. This was the first
time a judge ever has ordered that an employer could not pay a reporter's contempt fines. See David Ardia, “CMLP
Joins Other Media Organizations to Oppose Contempt Order Against Journalist in Anthrax Case,” Citizen Media Law
Project, March 12, 2008, http://www.citmedialaw.org/blog/2008/cmlp-joins-other-media-organizations-opposecontempt-order-against-journalist-anthrax-case (discussing Hatfill v. Mukasey, No. 03-01793 (D. D.C. March 07, 2008)
(order holding defendant Locy in contempt for refusal to reveal sources)). In the interest of full disclosure, note that
this paper's author has been and is at the time of publication a volunteer, clinical student, or part-time employee of the
Citizen Media Law Project.
118 The Supreme Court has discussed defamation suits' chilling effect on media defendants in the following cases (see
Lidsky, 49 DUKE L.J. at n.173): Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991); Milkovich v. Lorain
Journal Co., 497 U.S. 1 (1990); Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989); Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749
(1985); Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984); Wolston v. Reader's Digest Ass'n, 443 U.S. 157 (1979);
Hutchinson v. Proxmire, 443 U.S. 111 (1979); Herbert v. Lando, 441 U.S. 153 (1979); Time, Inc. v. Firestone, 424 U.S.
448 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Old Dominion Branch No. 496, Nat'l Ass'n of Letter
Carriers v. Austin, 418 U.S. 264 (1974); Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971); Rosenbloom v.
Metromedia, Inc., 403 U.S. 29 (1971); Time, Inc. v. Pape, 401 U.S. 279 (1971); Monitor Patriot Co. v. Roy, 401 U.S.
265 (1971); Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6 (1970); St. Amant v. Thompson, 390 U.S. 727 (1968);
Curtis Publ'g Co. v. Butts, 388 U.S. 130 (1967); Rosenblatt v. Baer, 383 U.S. 75 (1966).
119 Lidsky, 49 DUKE L.J. at 890-1 (“Media defendants identify litigation costs as a primary source of the chilling effect, and
these costs will fall even more heavily on ... nonmedia defendants .... [N]onmedia defendants are unlikely to have
enough money even to defend against a libel action ....”).
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may choose to shelve speech only when it seems blatantly defamatory; otherwise they will err on the
side of reproduction so long as the resulting lawsuits do not surpass whatever level of expense they
find acceptable. This results in the dissemination of a wide scope of controversial speech. Smaller
traditional media entities will set the bar somewhat lower – for instance, refusing to reproduce some of
the more contentious examples of content that could be defamatory if false. The key variable for these
speakers may be the amount of corroborating evidence available, such as the number of sources who
can corroborate the statement. Farther down the continuum, as media entities get smaller and have
fewer resources, entities likely will decrease their cutoff level of risk for a statement's defamatory
nature and increase their requirement of supporting evidence, correspondingly reducing the amount of
controversial speech that they disseminate.
At some point along the continuum, the fear of suit combined with a lack of resources begins to
prevent the reproduction of speech that may not seem defamatory at first glance.120 Given the unsettled
nature of defamation law, it can be difficult to predict what sorts of statements could result in liability.
Past a certain point on the continuum the likelihood of liability becomes irrelevant. Defending a
lawsuit in any capacity is a significant burden on these speakers; the more risk-averse among their
number will choose not to reproduce any speech at all for fear of suit if faced with a general standard of
reproduction liability.
For speakers at this farther end of the continuum, even obviously meritless defamation claims
will chill the average online speaker's speech.121 Allegedly wronged individuals take advantage of this
fact by using lawsuits to threaten online speakers.122 A particularly troubling example is the growing
120 See n.122, infra.
121 Barrett, 40 Cal.4th 33, 57-8 ([E]ven when a defamation claim is 'clearly nonmeritorious,' the threat of liability
'ultimately chills the free exercise of expression.') (citing Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, 268
(1986)). See also Time, Inc. v. Hill, 87 S.Ct. 534, 542-3 (1967)
122 For background, visit the Citizen Media Law Project's database of legal threats and legal actions against online
speakers at http://www.citmedialaw.org/database. In many cases the threatened citizen chose to remove the speech
rather than face suit, even when the claims obviously were non-meritorious. Also see WE THE MEDIA at 195 (“[T]hreats
against bloggers abound. [And] [c]ommenters on Internet forums have had [even] more trouble.”).
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phenomenon of plaintiffs who file defamation suits aimed specifically at suppressing citizens' speech.
Known as Strategic Lawsuits Against Public Participation (“SLAPPS”), these suits use the threat of
burdensome litigation as weapons against speech with which the filers disagree.123 These suits have
proven to be effective as a tool for punishing and preventing speech.124
Defamation law does little to protect speakers from this abuse of the law.125 Some states have
enacted so-called anti-SLAPP legislation, which allows defendants to dismiss some meritless suits at an
early point in the litigation process.126 Anti-SLAPP statutes also sometimes allow defendants to
recover costs and fees from plaintiffs after successfully obtaining dismissal.127 However, only 24 states
currently have anti-SLAPP statutes128 and there is no federal anti-SLAPP statute.129 The existing
statutes are plagued with exceptions that render them less useful.130 While anti-SLAPP statutes may
help some defendants to dismiss suits in the early stages, they do little to alleviate the chilling effect
arising from the cost of even those early stages of suit.131
123 Danielle M. Conway-Jones, “Defamation in the Digital Age: Liability in Chat Rooms, on Electronic Bulletin Boards,
and in the Blogosphere,” SK102 ALI-ABA 63, 87 (2005) (“Strategic Lawsuit against Public Participation are lawsuits
that 'masquerade as ordinary lawsuits' but are brought to deter common citizens from exercising their political or legal
rights or to punish them for doing so.”) (quoting Batzel v. Smith, 333 F.3d 1018, 1023-24 (9th Cir. 2003)).
124 Mark Jackson, Note, “The Corporate Defamation Plaintiff in the Era of SLAPPs: Revisiting New York Times v.
Sullivan,” 9 WM. & MARY BILL RTS. J. 491, 492 (2001) (“Intimidation lawsuits have become a major weapon in the
corporate arsenal. Using defamation suits against civic-minded citizens, groups, and publishers, corporations have
drastically squelched citizen and news media involvement. In this way, the defamation suit has become a tool to ward
off public criticism and oversight.”); M. Linda Dragas, Comment, “Curing a Bad Reputation: Reforming Defamation
Law,” 17 U. HAW. L. REV. 113, n.51 1995 (“Increasing numbers of Strategic Lawsuits Against Public Participation
(“SLAPPs”) indicate that governmental and nongovernmental plaintiffs recognize the intimidating power of filing libel
suits against the media and private citizens who voice opposition to their actions.”); Bill Johnson's Rests., Inc. v. NLRB,
461 U.S. 731, 740-41 (1983) (“A lawsuit no doubt may be used as a powerful instrument of coercion or retaliation . . . .
[and] the chilling effect upon willingness to engage in protected activity is multiplied where the complaint seeks
damages . . . .”).
125 Seth Goodchild, “Media Counteractions: Restoring the Balance to Modern Libel Law,” 75 GEO. L.J. 315, 316 (1986)
(“[D]efamation law ... provides little protection from nuisance suits.”).
126 Conway-Jones, SK102 ALI-ABA at 87. See, e.g., Cal. Civ. Proc. Code § 425.16 (allowing defendants claiming
protection against SLAPP suits to ask for a special motion to strike on the pleadings); Mass. Gen. Laws Ann. Ch. 231 §
((allowing a similar “special motion to dismiss”).
127 See, e.g., Cal. Civ. Proc. Code § 425.16; Mass. Gen. Laws Ann. Ch. 231 § 59H.
128 Daniel M. Waggoner, “A Post-Borat Reprieve on Reality-Based Programming,” 25-FALL COMM. LAW. 1, 20 (2007).
129 See Trende, 44 DUQ. L. REV. at 639 (calling for federal anti-SLAPP statute as a possible solution to the problem of
nuisance suits).
130 See LAWRENCE SOLEY, CENSORSHIP, INC. 95-102 (2002) (comparing various anti-SLAPP statutes).
131 See Sharlene A. McEvoy, “The Big Chill”: Business Use of the Tort of Defamation to Discourage the Exercise of First
Amendment Rights, 17 HASTINGS CONST. L.Q. 503, 503 (1990) (“While many of these actions fail at the earliest stages
of the civil process, they have the effect of chilling public participation.”).
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The chilling effect of suit is compounded further by differences between online and offline
speech. Because online speech becomes accessible from anywhere in the planet as soon as it hits the
Internet, the law has difficulty determining which jurisdictions are appropriate for a given onlinespeech-focused dispute. Plaintiffs looking to further punish defendants can take advantage of this by
engaging in forum shopping.132 Facing suit in foreign jurisdictions can exacerbate online speakers'
ignorance of defamation law by forcing them to cope with differences between their home jurisdiction's
law and the law of a different state or country. It also entails increased expenses because of the cost of
defending a suit outside one's jurisdiction, including travel costs and lost wages due to increased time
away from home.
Similarly, plaintiffs can use the legal process to strip online speakers of their ability to engage in
anonymous speech.133 The ability to speak anonymous is a key benefit of online speech, because it
allows citizens to engage in speech activities that they would not otherwise have undertaken due to fear
of reprisal – such as criticisms of the government, corporations, or their workplace. The existence of
online reproduction liability and permissive subpoena procedures would allow plaintiffs to discover the
identity of online speakers without valid defamation claims.134 Absent protection from such meritless
revelation, the chilling effect suit will suppress the benefits of online speech. As the following section
shows, many other differences between online and offline speech provide evidence as to why only a
standard of absolute immunity would prevent these chilling effects.
IV.
THE NEED FOR A BRIGHT-LINE RULE OF IMMUNITY
Chilling effects can be prevented, without undue harm to allegedly defamed parties, through a
standard of culpability sufficiently high to immunize the activity except where the activity has little or
132 See WE THE MEDIA 197-99.
133 Lidsky, 49 DUKE L.J. at 889 (“[L]ibel suits may chill simply by threatening to reveal the identities of those who speak
their minds online. [I]nternet users will come to recognize the ease with which their online anonymity can be stripped
simply by the filing of a libel action, and they will censor themselves accordingly.”).
134 See id.
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no redeeming constitutional value.135
Matt C. Sanchez
msanchez@law.harvard.edu
As discussed the preceding section of this paper, online
reproduction has significant constitutional value even when defamatory because of its benefits to the
public dialogue. Since online reproduction has value even when defamatory, absolute immunity is
appropriate.
Because the chilling effect on online speech arises from the threat of suit, rather than from the
suit itself, absolute immunity is the only way to ensure that valuable speech is protected. So long as
plaintiffs have exceptions to allege when bringing suit, the suit can proceed to at least the early stages,
entailing significant burden upon the defendant. Contrariwise, immunity would preclude this
opportunity. Prospective plaintiffs then would be on notice that their suit would have no chance of
survival. Few plaintiffs would undertake the burden of suit themselves with this knowledge,
particularly given the possibility of sanctions filing obviously meritless claims.
With this basic principle in mind, the remainder of this section will discuss various ways in
which immunity could be limited and will show why each of them would unduly restrict the online
dialogue.
a.
PROFESSIONAL VERSUS NON-PROFESSIONAL SPEAKERS
Given that the argument in favor of immunity focuses to such an extent on the differences
between professional and non-professional speakers, some might propose a standard that would
immunize citizen online speakers while leaving liability in place for online speakers who represent the
traditional media. However, debates over shield laws,136 open records laws,137 and other speech-related
legal issues have shown that legal distinctions between professional and non-professional media are
135 Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294, 340 (S.D.N.Y., 2000), affirmed by 273 F.3d 429 (2d.Cir.,
2001) (describing the immunity rationale under defamation law in order to show the appropriateness of a similar rule
for copyright actions).
136 See generally Mary-Rose Papandrea, “Citizen Journalism and the Reporter's Privilege,” 91 MINN. L. REV. 515 (2007)
(arguing for a journalist shield law definition of “journalist” based upon the individual's speech activities rather than
identity or vocation).
137 See generally Zrinka Rukavina, Note, “Re-pressing the Internet: Journalists Battle for Equ al Access,” 13 DEPAUL-LCA
J. ART & ENT. L. 351 (2003) (examining various definitions of “the press” or “journalist” in the context of open records
laws).
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unworkable.138
Matt C. Sanchez
msanchez@law.harvard.edu
There is not and likely never will be a feasible bright line distinction between these
classes of speakers. As a result, any attempt to condition reproduction liability on the speaker's
professional status would further the chilling effect because it would make it difficult for a wide range
of online speakers to predict whether immunity would extend to them, leading them to restrict their
speech activities.
Previous approaches to speaker distinction have looked to the percentage of income a speaker
receives from speech activities or139 the speaker's affiliation with media entities.140 None of these
formulations have achieved widespread support. One problem is that they are based on the outdated
view that there is a class of speakers – the media – whose speech is easily distinguishable from the
speech of ordinary citizens.141 More recently commentators have been arguing for standards based
upon the speakers' actions rather than their profession or income.142
At best, accepting any of these tests would result in a standard in which classifications would
require an evidence-intensive court determination of the speaker's status. If percentage of income is set
as the determining factor, it is easy to imagine situations that would present problems. For instance,
consider a regular USA Today contributor who has a day job as an attorney and merely writes in her
spare time. If affiliation with a traditional media entity is the key, the same contentious decisions
would arise around which speakers and entities would be covered; consider online-only publications
that have a full-time staff and significant influence in the media.143 An action-based standard would
138 Lidsky, 49 DUKE L.J. at 907 (“A media/nonmedia distinction would draw unsound and unworkable status distinctions
among speakers ....”) (discussing a reverse scenario in which only professional speakers would receive certain First
Amendment protections).
139 See, e.g., DEL. CODE ANN. tit 10, § 4320(4) (1999) (shield law statute covering individuals who make their “principal
livelihood by ... obtaining, or preparing information for dissemination” and individuals who spend at least 20 hours per
week engaging in those activities).
140 See, e.g., ARIZ. REV. STAT. ANN. § 12-2237 (2003) (shield law statute covering “[any] person engaged in newspaper,
radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station ....”).
141 This idea is troublesome in its own right, as failing to treat online individuals as valuable speakers could lead to a
number of other restrictions on free speech. See generally Papandrea, 91 MINN. L. REV. 515; Lidsky 49 DUKE L.J. at
907.
142 See note 136, supra.
143 For example, Slate magazine (www.slate.com), a The Washington Post Company online-only publication, has
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entail a difficult, case-by-case determination of which activities constituted protected speech. The
added litigation over this issue would increase the burden involved in reproduction suits. Worse, it
would strip the immunity protection of its ability to preclude chilling effects on speech by allowing
essentially any defamation claim to continue at least until a determination of professionalism is made.
At worst, such a standard might cause courts to institute a “sliding scale” determination of
reproduction liability. If so, each individual speaker would fall somewhere on the continuum of
professionalism, necessitating a balancing of factors unique to every case. This idea might seem to
have benefits: it would allow a determination of liability more in keeping with the individual speaker's
level of sophistication and resources. However, such a standard would change reproduction liability
into a tumultuous cloud of possible classification in which no speaker would know how to situate
themselves. The highly subjective sliding scale process would leave classification up to the whim of
the court and the ability of opposing counsel to spin the facts one way or the other. Speaker
classification could end up as a mirror of the vague public figure doctrine – courts could find that
certain speakers are not professional media speakers generally but are acting as one in a given scenario,
or that speakers discussing certain “public interest” topics should receive a more professional-medialike level of protection as compared to other topics.144 The net result would be a greater amount of
chilled speech, given that speakers would be left to guess how liability might affect them.
A rule treating all online speakers the same is the only standard that is both workable in practice
and capable of protecting speech from undue suppression. A determination of whether disputed content
was or was not published online requires only the most cursory analysis. Restricting liability to offline
sources reducing the possibility of chilling speech to minimal levels, as it makes liability possible only
approximately 40 staffers. The site receives over five million unique visitors per month and regularly is referenced by
traditional publications. Data on staffers and unique visitors was taken from Slate's “Who we are”
(www.slate.com/id/117517/) and “Advertising info” (www.slate.com/id/2078020/) pages and was current as of May
09, 2008.
144 For more discussion on the inappropriateness of subject matter or topic distinctions, see subsection c of this section,
infra.
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for speakers with the means of publishing offline speech. The vast majority of speakers with that
capability are professional media organizations or other speakers that are better equipped to deal with
litigation and historically have been expected to maintain a higher level of control over their content.
Commentators point out that an online/offline distinction – the distinction that likely will result
under the CDA – would grant immunity to speech reproduced online but allow liability for identical
reproduction offline.145 For instance, a print newspaper article would be subject to liability while the
online version of that same article on the newspaper's website would be immune. As disconcerting as
that idea may sound at first, it is an equitable result. Liability arising from printed publications has
significantly less deterrent effect on speech as a whole, given that it typically will affect only
professional media organizations with the expertise and resources to handle such situations.
Categorically immunizing online reproduction reflects the differing balance of equities involved in
online speech while respecting historical protections for individuals defamed by offline media.
b.
FORM OF REPRODUCTION
Online reproduction's unique benefits to the public dialogue provide the strongest argument in
favor of immunity.146 A seemingly logical compromise, then, would be to immunize reproductions
that offer these unique benefits – namely, online commentary – while retaining the traditional media
standard for forms of online reproduction that mimic traditional methods of reproduction. Thus, pointby-point refutation of defamatory quotes would be protected, while exact reproduction of an entire
defamatory news article with no additional content would not. This would seem to preserve the new
form of online dialogue while punishing only the sort of duplicate production that traditional media law
denies protection. However, distinctions based upon level of commentary are equally as unworkable as
distinctions based upon type of speaker and thus would entail a similar chilling effect on speech.
145 Troiano, 55 AM. U. L. REV. at 1468-9 (“[Immunity would] allow[] information that could not be published in a
newspaper to be purposefully placed on a blog with no repercussions.”)
146 See section III(b) of this paper, supra.
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First, the question would arise as to what forms of speech qualify as “commentary.” Attempting
to define commentary would entail a value judgment about speech: we necessarily would ask what
kinds of statements offer sufficient opinion or analysis to qualify for protection. Such a judgment
would involve the danger that cruder examples of commentary would be passed over in favor of more
palatable speech, or that in-depth analysis would be privileged over gut reactions to current events –
results that would degrade online speech's grant of wide access to a speedy public dialogue. 147
More importantly, commentary is of value even in its most reactionary or minimal forms. One
can analogize to the seminal First Amendment case Cohen v. California:148 imagine an online speaker
who posts a link to third-party defamatory content accompanied by the statement, “What the [insert
favorite expletive]?” Crude, yes, and probably not representative of serious contemplation, but it
expresses an emotional reaction to a statement that carries significant cognitive force.149 In their own
way, these expressions are an honest and valuable part of the public dialogue.
A commentary-based standard would be problematic even if it were implemented in a way that
did not discriminate between forms of speech. Reproductions with no appended commentary at all still
carry an inherent level of commentary. The message implicit in a reproduction is, “I think you should
be aware of this.” The discussion board user who replies to a topic by linking a news article adds to the
dialogue even if she does not comment further, because the reproduced content becomes part of the
pool of information from which the discussion draws. Further, a standard that exempts only speech
that includes a minimum amount of commentary would ignore the communal benefits of online speech.
While some reproducers may merely pass on a given piece of content, the fact that they have done so
will inject the content into the online dialogue, opening the material up for others' commentary.
147 Current defamation law already holds the danger of singling out less-mainstream speech for punishment. See Gertz,
418 U.S. at 349 (“Additionally, [defamation law] invites juries to punish unpopular opinion ....”) (citing the doctrine of
presumed damages as a cause of this fact).
148 430 U.S. 15, 25 (1971) (holding that the phrase “Fuck the Draft” emblazoned on a jacket was protected First
Amendment speech).
149 See id.
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Finally, the legal uncertainty that would arise from a commentary-based standard again would
produce an unacceptable chilling effect on online speech. Online speakers would face another
complicated factor in predicting their likelihood of liability, making them more likely to self-censor.
Parties with non-meritorious claims could use the commentary test as another way to ensure that the
case may proceed through the early stages of suit.
c.
SUBJECT MATTER OF REPRODUCTION
The most common exceptions to defamation liability revolve around the subject matter of
speech.150 Statements concerning public figures, matters of public concern, and similar “public
interest” subjects receive special protection under the First Amendment,151 which first and foremost
defends the peoples' ability to maintain a robust dialogue on issues of government and society. 152
Proponents of online reproduction liability might attempt to dismiss immunity at the outset by arguing
that existing privileges related to these subjects already protect the online speech that has value.
However, the very concepts of public figure and public concern are antiquated notions that have little
application to the online speech environment.153 Attempting to condition online liability on these
conceptions would further the chilling effect on speech.
Individuals may become public figures through their position or through action that inserts
them into public controversy.154 Exposure of oneself to criticism in the context of issues of public
150 See section II(b) of this paper, supra.
151 For instance, public figure plaintiffs must prove that defendants published defamatory material with “actual malice” in
order to prevail, while private figures must prove mere negligence. See Sullivan, 376 U.S. 254 (establishing actual
malice standard for public figure plaintiffs in defamation actions); Gertz, 418 U.S. 323 (establishing negligence
standard for private figure plaintiffs).
152 See Sullivan, 84 S.Ct. at 720 (“[T]hat freedom of expression upon public questions is secured by the First Amendment
has long been settled by our decisions. The constitutional safeguard ... ‘was fashioned to assure unfettered interchange
of ideas for the bringing about of political and social changes desired by the people.’) (qouting Roth v. United States, 77
S.Ct. 1304, 1308 (1957)).
153 Perzanowski, 94 CAL. L. REV. at 833 (“The public figure doctrine has become an anachronism. Current First
Amendment protections for defamation defendants are centered on a simplistic and antiquated conception of the
communications environment....”); Peterson, 79-MAR WIS. LAW. at 10 (“By their nature, blogs may not fit within the
private/public framework that the U.S. Supreme Court constructed for defamation law more than 30 years ago.”).
154 See Curtis Pub. Co. v. Butts, 388 U.S. 130, 155 (1967) (ruling that plaintiff Butts became a public figure due to his
position as athletic director of a public university and that plaintiff Walker became a public figure due to “purposeful
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concern is part of life in a civilized community – doubly so in one that places a premium on the
freedom of speech.155 This only becomes more true as technology increasingly links individuals
together. The question of what amounts to public controversy or matters of public concern, however, is
a “source of persistent confusion.”156 A useful way to conceptualize these doctrines is to relate them to
“newsworthiness” as it applies to media entities.157 The problem is that newsworthiness has taken on
an entirely different meaning in the online context.
For a topic to be “newsworthy” in the traditional media, it must be considered worthwhile
enough to warrant coverage. This consideration takes into account some combination of the public's
interest in receiving the information and the media entity's interest in making a profit. The entity
devotes its limited amount of resources to those topics that have the highest value under this metric.
Subjects that are not desirable enough to warrant treatment from traditional media speakers are not
considered newsworthy.
On the Internet, however, a piece of information is “newsworthy” if even one person believes it
is worth discussing. There is no scarcity of print space or audiovisual time online nor any other barrier
preventing speakers from producing or reproducing information regarding anything that interests
them.158 Correspondingly, citizens now can find information regarding nearly anything that interests
them, which is a tremendous benefit to the public dialogue. The concept of a scope of newsworthy
activity amounting to a thrusting of his personality into the ‘vortex’ of an important public controversy....”).
155 Time, Inc. v. Hill, 385 U.S. 374, 388 (1967) (“Exposure of the self to others in varying degrees is a concomitant of life
in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary
value on freedom of speech and of press.”).
156 Perzanowski, 94 CAL. L. REV at 868.
157 Even though newsworthiness seems to be the essential characteristic of public concern and public controversy, the
Supreme Court explicitly has denied any exact correlation. The Court equated the two in Rosenbloom v. Metromedia,
Inc., 403 U.S. 29 (1971), but repudiated that concept in Gertz, 418 U.S. 323, and subsequent cases. However, the Court
has advanced no contrary formulation for the concepts of public concern and public controversy. If the two concepts
are not synonymous with newsworthiness – which remains to be seen – they nonetheless are closely related enough for
the purposes of this discussion.
158 This is not to say that online speakers do not utilize any form of “newsworthiness” judgment. Speakers still choose to
limit the scope or amount of discussion in order to make their speech more coherent or attractive. Discussion also still
is limited by the amount of time that a speaker is willing to devote to speech activities. However, these are lower
barriers than the newsworthiness concerns of the traditional media; given the sheer number of online speakers, little
will go undiscussed.
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topics defined by traditional media entities – or, worse, by courts – is contrary to the very nature of
online speech.159
The breakdown of newsworthiness signals the breakdown of the public figure doctrine. As the
scope of newsworthy topics expands toward infinity, an individual's insertion into less-traditionally
newsworthy ventures warrants his classification as a public figure or temporary public figure. Beyond
a certain point, the “public figure” concept loses its meaning.160
To return to an earlier example, accusations about a citizen’s allegedly illicit activities might not
have been considered to be of public concern under traditional standards. Due to the weaker public
concern or controversy element, reprinted accusations against the citizen might thus have failed to
qualify for protection under the actual malice standard for public figures. However, it is an abuse of
semantics to suggest that such accusations of wrongdoing are not matters of concern to some members
of the public – for instance, those who are close to the accused individual, or those who allegedly have
been harmed by his activities.
In the pre-online era, it made sense to afford extra protection to individuals such as the accused
local businessman because they did not have much opportunity to rebut the media's accusations.161
Traditional defamation law sensibly took for granted that the defamer typically would be the much
more powerful party.162 Much like citizens who wanted to disseminate their views, accused individuals
159 See Lidsky, 49 DUKE L.J. at 896 (“The mainstream media no longer have the power to exclusively define what is 'news'
....”).
160 Obviously this discussion has serious implications for the public figure and public concern doctrines in defamation law
as a whole. However, the question as to what effect such an evolution of these doctrines would have on defamation
liability for original statements is beyond the scope of this paper. The unique benefits of online reproduction, the
possible harm to these benefits arising from reproduction liability, and the decreased ability of reproducers to ascertain
the defamatory nature of statements are sufficient to allow a separate standard of liability on this issue.
161 Along with intentional insertion into public controversy, this is one of the two reasons why the Supreme Court
distinguishes between public and private figures. See Gertz, 418 U.S. at 362-3 (holding that the actual malice
requirement is not appropriate for private individuals because they “do[] not have the same degree of access to the
media to rebut defamatory comments [as do public figures]”); Curtis Pub. Co., 388 U.S.at 155 (“[Public figures have]
sufficient access to the means of counterargument to be able ‘to expose through discussion the falsehood and fallacies'
of the defamatory statements.”) (quoting Whitney v. People of State of California, 274 U.S. 357, 377 (1927) (Brandeis,
J., dissenting)).
162 Jennifer Meredith Liebman, Recent Development, “Defamed by a Blogger: Legal Protections, Self-Regulation, and
Other Failures,” 2006 U. ILL. J.L. TECH. & POL'Y 343, 364 (“[C]lassic libel cases such as [Sullivan] were decided on the
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generally had no way of reaching a large audience. In the context of online speech, this assumption is
false.163 Defamed individuals typically have a similar ability to speak online as do their accusers.164
An individual accused by a blogger can respond on her own blog, comment on the accusing blog, post
a reply to a forum where she was accused, or perhaps even ask the blogger to retract or correct his
statements.
Any fear that online reproduction unchecked by a public/private figure distinction would result
in the undue dissemination of private matters are overstated. Online speakers will reproduce
information they think is worth disseminating and online information consumers will seek out the
information they find is worth obtaining. Matters thus generally will remain within the localized
sphere in which they belong. Local accusations of illicit activity, for instance, will become a part of the
discussion among the local community; it is unlikely that others will consume that information to any
appreciable extent. Occasionally matters may attract attention from an audience beyond the typical
sphere of interest, but the fact that it attracts a wider audience is evidence that the material is of wider
public concern.165
After the preceding subsections of this paper it bears little explication that conditioning liability
on the subject matter of the reproduction would have a chilling effect on speech. Allowing such a
condition would force online speakers to make a determination of an individual's public or private
status before choosing to reproduce content targeted at that individual, which would be an
insurmountable barrier to some speakers. It would give prospective plaintiffs one more loophole
theory that the tort of libel protected a weaker victim of defamation from a powerful defamer.”).
163 See Liebman, 2006 U. ILL. J.L. TECH. & POL'Y at 364 (“In terms of online media ... the defamer is not necessarily the
more powerful party. [L]aws designed to protect what is assumed to be the weaker, injured party, from the powerful
defamer may not serve their purposes when financial resources of the parties are taken into consideration”).
164 Peterson, 79-MAR WIS. LAW. at 10 (“Unlike traditional means of publication ... [the Internet] can help level the playing
field for private and public figures.... Indeed, both private and public figures have the same means and access, at least
on the Internet, to counter false statements.”).
165 See Sableman, Mark, “Fair Comment, The 'Brightest Jewel in the Crown of Law,' as Protection for Free Speech and
Against Abusive SLAPP Suits,” 61 J. MO. B. 132, 138 (“'[T]he public is entitled to pass an opinion on everything which
in any way invites public attention.'”) (emphasis in the original) (quoting dictum in Diener v. Star-Chronicle Publishing
Co., 132 S.W. 1143, 1149 (Mo. 1910)).
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through which they could bring meritless cases to at least the early stages of suit.
d.
KNOWLEDGE AND NOTICE
The preceding arguments have made much of the idea that it would be prohibitively difficult for
online speakers as a class to determine whether third-party speech is defamatory. However, the unique
character of online reproduction requires a bright-line rule of immunity even where online speakers
have notice that the content may be defamatory and even where online speakers know the content is
defamatory.
It is well-established that notice liability for producers or reproducers of third-party statements
would have a chilling effect on speech.166 This discussion has arisen most often in situations where a
website or other Internet service provider has hosted third-party content,167 though the concept applies
equally to online reproducers. Since reproducers typically will not be in a position to judge the truth or
falsity of the reproduced statements, it will be difficult if not impossible for them to ascertain whether
they would be susceptible to liability if they refuse to remove the content following notice. 168 If such
parties face liability when they do not remove content following notification, they will tend to remove
the content regardless of the validity of the notice.169 Thus, parties displeased with reproduced speech
will be able to effect the speech's removal regardless of whether their complaints have merit.170
166 See Zeran, 129 F.3d at 333 (“[L]iability upon notice has a chilling effect on the freedom of Internet speech.”); H. Brian
Holland, “In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism,” 56 U.
KAN. L. REV. 369, 395 (2008) (“Under traditional liability rules, intermediaries may be forced to adopt a least-commondenominator approach, resulting in overly broad restrictions on expression and behavior. A modified distributor-withknowledge approach ... similar to that employed by the DMCA, may produce the same type of chilling effect.”).
167 See, e.g., Id. ("[N]otice-based liability for interactive computer service providers would provide third parties with a nocost means to create ... lawsuits. Whenever one was displeased with the speech of another party ... the offended party
could simply 'notify' the relevant service provider, claiming the information to be legally defamatory.”).
168 For the reasons why it is difficult for online speakers to make such determinations, see section III(c) of this paper,
supra. Contra Troiano, 55 AM. U. L. REV. at 1479 (“[A]sking a blogger to remove defamatory content from the
blogger's comment section is ... not burdensome, for a blogger should not knowingly allow defamatory content on his
site, even if the blogger did not initially select the content for publication.”).
169 Zeran, 129 F.3d at 333 (“Because service providers would be subject to liability only for the publication of information,
and not for its removal, they would have a natural incentive simply to remove messages upon notification, whether the
contents were defamatory or not.”).
170 See Barrett, 146 P.3d at 525 (“Notice-based liability for service providers would allow complaining parties to impose
substantial burdens on the freedom of Internet speech by lodging complaints whenever they were displeased by an
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Matt C. Sanchez
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Abuses of notice-based schemes in other areas of online communications law have proven that these
chilling effects occur.171
A rule that imposed liability when the reproducer suspects or even knows the third-party
material was defamatory similarly is inappropriate. As established by the fair report and neutral
reportage privileges, there can be merit in reproducing defamatory speech even with knowledge of its
defamatory character because the fact that the speech was made can be newsworthy in itself. 172 This is
even more true of online speech, which features commentary and discussion about controversial
allegations that have benefits to the public dialog that exceed the value of traditional reproduction.
Additionally, a knowledge-based standard again would increase the chilling effect of suit. Such
a standard would entail a fact-intensive determination of the defendant's mental state. Any plaintiff
could allege that the defendant knew the matter was defamatory in order to ensure that the suit made it
to the early stages. Because of these factors, the benefits of online reproduction and the increased
chilling effect of litigation makes reproduction of defamatory speech even with knowledge worth
protecting.
V.
DEFAMED INDIVIDUALS' ABILITY TO SEEK REDRESS
It is inevitable that online reproduction immunity in some cases will restrict defamed
individuals' ability to seek redress for the harm they have suffered. Given the value of online
reproduction even when defamatory, this should not affect the inquiry under the First Amendment.173
However, it is worth noting that while reproduction immunity impairs defamed individuals ability to
seek redress, it does not do so unduly.
online posting.”).
171 A recent study found that the DMCA takedown provisions were “commonly being used . . . to create leverage in a
competitive marketplace, to protect rights not given by copyright (or perhaps any other law), and to stifle criticism,
commentary and fair use.” Jennifer M. Urban & Laura Quilter, “Efficient Process or 'Chilling Effects'? Takedown
Notices Under Section 512 of the Digital Millennium Copyright Act,” 22 SANTA CLARA COMPUTER & HIGH TECH. L.J.
621, 687 (2006).
172 See sections II(b)(1) and II(b)(2) of this paper, supra.
173 See discussion of exceptions to defamation liability in section II(b) of this paper, supra, none of which take into
account any variation in harm suffered by the defamed individual.
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Reproduction immunity in no way affects defamed individuals' right to seek redress against the
original defamer and to have her named cleared in court. The availability of these remedies means that
the defamed individual will have some means of redress regardless of the ability to sue reproducers.
Some commentators have argued that originators of defamatory statements should be liable for
additional harm caused by reproductions of their statements as well;174 if such a standard were
instituted, the defamed individual would have the opportunity to receive compensation for all
disseminations of the defamatory material without pursuing reproducers.
Some commentators argue that online reproduction immunity places an undue restriction on
defamed individual's right to seek redress because of a purported difficulty in bringing online speakers
to justice. The premise is that ill-intentioned online actors typically are “far beyond the reach of
conventional law.”175 If the original speaker cannot be found and reproducers are immune, the
argument holds, the defamed individual has no way of seeking justice.176
These fears are overstated.177 Nearly all online information is traceable to some extent,178 and
technological innovations are only making this easier.179 Further, the court system makes it easy for
aggrieved parties to subpoena Internet Service Providers and other parties for information regarding the
174 See, e.g., Del Medico, 31 FDMULJ 1409, 1440 (2004) (“[T]he original publisher is rightly held liable for actual
damages for third party publication.”)
175 Doug Lichtman & Eric Posner, “Holding Internet Service Providers Accountable,” 14 Sup. Ct. Econ. Rev. 221, 226
(2006) (discussing originators of malicious computer code); Thomas H. Koenig & Michael L. Rustad, “Rebooting
Cybertort Law,” 80 WASH. L. REV. 335 (2005) (“Consumers have the right to pursue primary wrongdoers through tort
litigation, but this is rarely a realistic option because the typical cybercriminal finds it easy to default by disappearing
....”).
176 Holland, 56 U. KAN. L. REV. at 392 (“[The inability to find originators] creates a situation in which significant
individual harms cannot be legally deterred or remedied ....”) (describing the arguments of proponents of reproduction
liability).
177 Holland, 56 U. KAN. L. REV. at 392 (“These fears are either misplaced or overstated. [I]t is not clear that a significant
number of bad actors are beyond the reach of the law.”)
178 Katharine Q. Seelye, “Snared in the Web of a Wikipedia Liar,” N.Y. TIMES, Dec. 4, 2005, (“'[D]efamation [is] easily
pursued through the courts because almost everything on the Internet [is] traceable ....'”) (quoting Stanford law
professor and cyberspace expert Lawrence Lessig) (available at
http://www.nytimes.com/2005/12/04/weekinreview/04seelye.html).
179 Holland, 56 U. KAN. L. REV. at 392 (“Advances in technology are making it increasingly possible to locate and identify
bad actors online, such that online anonymity is difficult to maintain.”).
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identity of an online speaker.180
Matt C. Sanchez
msanchez@law.harvard.edu
So-called “John Doe” lawsuits allow plaintiffs to file suit before they
know the identity of the defendant, allowing them to utilize the legal process to find the correct
speaker.181
Similar fears about the ability to seek justice against original speakers equally are overstated.
For instance, a related issue is the problem of jurisdiction – the Internet can allow individuals to
defame foreign citizens while remaining safely outside the foreign nation's legal reach. However,
governments have begun to develop methods of applying liability in such cases.182
Two of these fears are more valid. One is that original speakers are more likely to be judgmentproof and thus will not be able to compensate defamed individuals.183 Because online speakers tend to
be individual citizens, it is true that some will not have the means to satisfy damage awards. The other
fear is that some speakers might go to extremes to publish anonymously, such as by using only public
computers, providing false identifying information in order to access the computer, and revealing no
real identifying information along with the defamatory online speech. A variation of this could be that
online speakers will use such methods in order to create a fake original post, which they then can
reproduce with impunity. However, defamation law has been short of examples of such occurrences
thus far.184
These final two concerns are the strongest arguments against online reproduction immunity.
For the forseeable future, it is possible that some defamed individuals will go uncompensated if
180 Lidsky, 49 DUKE L.J. at 889 (“Once a complaint is filed, it is a simple matter to get a subpoena to force the ISP to
divulge the anonymous defendant's identity.”); Seelye,
http://www.nytimes.com/2005/12/04/weekinreview/04seelye.html, (“'[S]ubpoenas [are] not that hard to
obtain.'”)(quoting Lawrence Lessig).
181 See generally Lidsky, 49 DUKE L.J. 855 (discussing John Doe suits).
182 Holland, 56 U. KAN. L. REV. at 393 (“[W]here the bad actor is identified but is found outside the jurisdiction, sovereign
governments have developed methods for resolving disputes to permit the direct extraterritorial application of domestic
law ....”); Jack L. Goldsmith, “Against Cyberanarchy,” 65 U. Chi. L. Rev. 1199, 1232-37 (discussing methods for
resolving conflicts between sovereign governments).
183 See Koenig, 80 WASH. L. REV. at n.268.
184 Plaintiffs have failed to locate online tortfeasors in at least one case, though it was not a defamation action. Doe v. GTE
Corp., 347 F.3d 655, 656 (7th Cir. 2003) (noting that the original sellers of illicit online videos “defaulted or were
dismissed when they could not be located or served.”).
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defendants cannot pay damages or if speakers use online-specific evasive tactics get around the law.
As unfortunate as this may be for defamed individuals in what few exceptions may occur, these
extreme examples are not enough to counterbalance the benefits of online reproduction that would be
lost by a standard of reproduction liability.
VI.
CONCLUSION
Online reproduction, like online speech as a whole, is distinct from speech that exists in the
traditional media environment. It holds benefits to the public dialogue beyond those of traditional
reproduction, and those benefits are so compelling that they have constitutional value even when
defamatory. Online reproducers also are distinct from traditional media speakers. The characteristics
of the average online reproducer – in other words, the average citizen – make their speech susceptible
to suppression by the mere threat of litigation.
The need to protect the public dialogue created by online speech and online reproduction makes
appropriate a standard of absolute immunity for online reproduction of defamatory third-party speech.
Whether this occurs under the CDA or new legislation or by the efforts of the common law is
irrelevant. The law must recognize that online speech is a fundamentally new form of communication
and that the First Amendment – and society itself – will not tolerate attempts to hold it back.
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