By Christopher Cross
In a continuing comprehensive series of Ed-Op educational articles (located in the web site section heading "blogger info") centering on Internet communication and the role of the press and web publishers. This article examines:
I. The close nexus between the two entities involved;
II. The intrinsic value of Internet communication;
III. The application of the First Amendment into Internet communication;
IV. The application of immunity from harm in journalism
V. Summation
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I. The close nexus between the two entities involved
It is important to understand that the terms "Blogger and Blogs" have sadly become the slang for what both Congress and the Court's have often referred to as 'web publishers'. Therefore, merely because these slang terms are used does not devalue the work these individuals do.
Webster's Collegiate Dictionary defines 'Journalism' as:
1a:the collection and editing of material of current interest for presentation through news media b: the editorial or business management of an agency engaged in the collection and dissemination of news c: an academic study concerned with the collection and editing of news or the management of a news medium 2a: writing designed for publication in a newspaper or popular magazine b: writing characterized by a direct presentation of facts or description of events without an attempt at interpretation c: writing designed to appeal to current popular taste or public interest 3: newspapers and magazines
If we take Webster's definition in the literal sense then it is suffice to say that much of mainstream media now days could be ruled out as actually serving the role of 'journalism' since many news agencies are very bias in what they report. Sometimes this bias comes outright and sometimes it derives in more subtle ways, such as in what is known as 'interpretative writing or interpretative reporting'. Wherein the journalist essentially cherry-picks information to intentionally lead the readers in a particular direction that cannot help but draw the conclusion the journalist wants rather than what may actually be rooted in facts. A large percentage of this occurs in the editing stages, for example failing to insert a quote made by a person in opposition to the reporters' story. And media personnel rationalize this tactic of reporting on the predication that they have limited space in a newspaper or broadcasting time to air a story. Nevertheless, it is a form of bias reporting that has grossly undermined the integrity of journalism and forced society to suffer the results.
II. The intrinsic value of Internet communication
Now, because the Internet affords people with the opportunity to reach out to more people and in faster times, there has been a significant increase in the number of people using blogs; an estimated five (5) million people.
Many of these individual's spend enormous amounts of time researching their data to incorporate into the article that they are writing and publishing on the Internet for general societal consumption. I know that I have spent as much as three hours researching, writing and editing just one of the articles I have published in this series. So, it is certainly probable that there are many more like me who spend the time needed to produce quality articles that serve public interest or concern in newsworthy matters.
In 1996 Congress enacted the Communications Decency Act and of particular importance regarding the focus of this Ed-Op piece, is Section 230(a) which states in relevant parts:
The Congress finds the following:
(1) The rapidly developing array of Internet and other interactive computer services available to individual American's represent an extraordinary advance in the availability of eductional and informational resources to our citizens;
(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology devlops;
(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity;
(4) The Internet and other interactive computer services have flourished, to the benefit of all American's, with a minimum of government regulation;
(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services;
And of particular importance in terms of governmental intrusion is:
(b) Policy
It is the policy of the United States -
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
As a direct or proximate result of these seven (7) subsections to Sec. 230 there can be no doubt that weblogs hold a significant relationship and intrinsic value to providing a valuable service to society on many fronts beyond that of sharing 'cooking tips'. Accordingly, it cannot be [legitimately] argued that those individual's who are dedicated to producing newsworthy articles for their readers are not Journalist.
III. The application of the First Amendment into Internet communication
In addition to Sec. 230, in 1997 the U.S. Supreme Court held in relevant parts:
Reno v. ACLU, 521 U.S. 844
"Communication over the Internet, including e-mail, is protected by the First Amendment (Striking down the Communications Decency Act of 1996 for violating the First Amendment) Since "the Internet is not in the same category as the broadcast media, the government has no basis for providing a limit on First Amendment protections, and the attempted limit on speech should receive full First Amendment protections" Id at 870
Since Reno, there have been several judicial efforts made in direct attack against Internet First Amendment rights and are being premised on claims of copyright infringement, liable and slander, free trade issues, confidentiality and so on.
In the case of NXIVM Corporation v. Ross Institute, which is currently before the U.S. Supreme Court and is a ground breaking case in many ways, two questions have been raised:
1. Can copyright law be employed to enforce a nondisclosure agreement by depriving a critic of the ability to raise the defense of fair use in a copyright infringement action when he quotes even a small portion of a cult's "training manual," which the critic obtained from a former victim of the cult, solely on the ground that the cult requires participants to promise to keep its "training program" confidential?
2. Does the fact that material is quoted for the purpose of "criticism" of its author support a finding that the first statutory fair use factor (the purpose and character of the use) favors the alleged infringer in a copyright infringement case?
This case presents two very challenging, yet, extraordinary questions that encompass a broad range of First Amendment rights related to journalistic efforts. As not only does it deal with matters of copyright infringement, but also confidential information and informants as well as trade secretes and free enterprise. And although this case is before the Supreme Court, the lower Court's have ruled in favor of the Defendant, Ross Institute, which gives further judicial evidence thus far that the First Amendment is closely inter-related to the use of Internet communications.
One area of increasing controversy is that of prisoner rights in relationship to the utilization of the Internet and the associated First Amendment rights afforded to prisoners, for example:
In the case of Clement v. California Dept. of Corrections the 9th Circuit Court of Appeals held in April 2004, that the policy prohibiting inmates from downloading attachments sent to them by e-mail violated the First Amendment and therein upheld the lower Courts' injunction against the Department from enforcing this policy. However, the fact that such cases are being brought forward that involve prisoner rights means that web publisher's will inevitably be caught in the middle and the effects will certainly call into question the First Amendment rights of web publisher's in whole or in part.
IV. The application of immunity from harm in journalism
Of paramount importance regarding the Free Speech Protection Act of 2004 is that it is a pre-emptive legislative strike that safeguards the First Amendment rights of on-line web publisher's. More specifically, if web publisher's are in fact legitimately classified as journalist, which has not yet been called into judicial question that I know of, then the Act will provide us immunity from harm before the question is raised in a Court of law.
Michael S. Overing, OJR Columnist once wrote, in regards to the Homeland Security Act: "You have to question the wisdom of legislation that encourages private citizens to share information they've collected with our federal government. Offer them immunity from civil prosecution for their information and you're asking for a witch hunt. Prevent the press from gaining access to the information and source materials, and you've got a formula for framing innocent citizens and a prescription for a cover-up".
In the case of Jim Taricani however, the Court found him guilty of criminal contempt because he refused to disclose his source before a grand jury, for obtaining a video tape that is said to show Providence Mayor Vincent A. Cianci Jr. allegedly taking a cash bribe in 2001. The video tape was subject to a Court protective order and Mr. Taricani's Attorney's argued that Mr. Taricani acted in "good faith" that the tape was essentially free and clear. The Prosecutor argued that he did not have to prove whether or not Mr. Taricani acted in good faith or not and the Court agreed.
In Blair v. United States, 250 U.S. 273, 281 (1919); United States v. Bryan, 399 U.S. 323, 331 (1950) arguments were made that the First Amendment guaranteed the press an exception clause of limited extent, to having to disclose their sources. It was an argument later rejected in Branzburg v. Hayes, 408 U.S. 665 (1972) wherein the Court held:
''Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering which is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.''
Unlike the aforementioned cases, Mr. Taricani's Attorney was not asserting the same arguements but instead that Mr. Taricani was entitled to immunity from harm because he acted in "good faith and belief" when receiving the video tape; unknowing that it was under a Court order of protection. Thus, the problem lays in that the Prosecutor counter-argued that he held no obligation to disprove the "good faith and belief" affirmative defense and because of this Mr. Taricani was therefore liable.
In contrast, Landmark Communications v. Virginia, 435 U.S. 829 (1978) presents a similar case wherein a Judge was under investigation by the State Judicial Disciplinary Board and as such, State law required that the proceedings and records of such remain confidential. A newspaper agency was indited and convicted for violating the confidentiality clause of the State law. Upon appeal to the U.S. Supreme Court, the Court held in relevant part: "While a State may have numerous and important valid interest in assuring the confidentiality of certain information, it may not maintain this confidentiality through the criminal prosecution of nonparticipant third parties, including the press, who disclose or publish the information".
So the question becomes whether or not it is judicially proper to hold a Journalist in contempt when he or she acts in good faith and belief that disclosing or otherwise publishing confidential information is not illegal and therein refuses to disclose their source? If we say yes, as the Court did with Mr. Taricani, then we cannot help but be reminded of the aforementioned comments from Mr. Overing.
In relationship to on-line Journalist or information sent by e-mail, the question becomes perhaps even more complex, in part because of the Courts' ruling in Reno v. ACLU. But also the information may not even be solicited by the Journalist, yet, in the wake of Mr. Taricani they still might be held liable. And merely because 31 States have shield laws in place to protect Journalist does not mean that some rogue judicial personnel won't seek to take action against the Journalist on a federal level. To-wit plainly illustrates the overt necessity for the Free Speech Protection Act of 2004 to be enacted as it provides a decisive shield law on a federal level.
V. Summation:
William Godwin (1756-1836) English novelist, biographer, philosopher once said that: "Justice is the sum of all moral duty" and if true, then the role of the press and web publisher's hold a heavy hand in the moral obligations. To assert otherwise in totality and therein leave these entities empty-handed, is to equally deny the people their right to know.
This article, its' contents, subject matters and opinions expressed are not intended and should not be construed as legal advice or legal opinions, but solely in the scope of educational reasons in or related to current events of public interest or concern and/or related to other political matters. If you have a specific legal question or problem you are encouraged to consult with a licensed attorney.
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