THE FIRST AMENDMENT AND THE INTERNET: CONFLICT AND THE NEED FOR CHANGE
I am the last one to argue for government restraints on individual freedoms of any kind. On the contrary, since I attended law school I have been appalled by the whittling away of our individual rights by the U.S. Supreme Court. However, the Wild Wild West atmosphere of the Internet has created an anomaly that cries out to be corrected.
The yellow journalism epidemic which began in the late 19th century and practiced by newspaper giants William Randolph Hearst and Joseph Pulitzer, led to the formulation of journalistic ethics, backed by a body of case law, which still apply to legitimate journalists, but have absolutely no application in the wild world of the Internet. In this wild world, anyone can become a publisher, not bound by journalistic ethics that assure that what the public is reading and believing is well researched, responsible content. It is now primarily the Google algorithm which decides what is and is not important, and this algorithm highlights and displays the most popular results, which, in most cases, are the most entertaining and sensational, not the most truthful. In short, since the Internet is now the source that most people turn to for their news and information, we are experiencing an explosion of yellow journalism, whose favorite friends are the Google algorithm, and, ironically, the First Amendment, which courts interpret allows one to express oneself anonymously.
Courts have extended the protection of anonymous speech to the Internet. See McIntyre v. Ohio Elections Commission, 514 U.S. 334, 341-342(1995). In Doe v. 2The mart.com, Inc., 140 F.Supp 2d 1088, 1093 (WD Wash 2001) the District Court stated, “The right to speak anonymously extends to speech via the Internet. Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas. The “ability to speak one’s mind” on the Internet “without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate.” However, these cases are over ten years old. In the past ten years, the explosive use of the Internet has radically changed institutions and customs we have had for centuries. The e-book is taking over the printed book, marking a radical change in the publishing industry, newspapers are going out of business, the video rental industry is virtually non-existent, and the music industry has changed forever, all because of the Internet explosion.
The next victim of the Internet explosion appears to be journalism. Anyone now with an Internet connection and a computer can create a blog that can reach millions of people, thanks to the Google algorithm. Bloggers are unrestrained by the Code of Ethics that journalists swear by, which include the principles of truthfulness, accuracy and objectivity, impartiality, fairness and public accountability. To make matters worse, educated journalists have a hard time exercising their profession while at the same time paying their bills. Internet blogs and publications are no longer just bulletin board postings. They have widespread followings, and, in many cases, now generate revenue from their writings. In essence, the professional journalist can no longer compete with bloggers any more than Blockbuster can compete with Netflix.
One of the reasons that journalists are required to put their name on their work is to make them be responsible for what they write. Anonymous bloggers on the Internet are not so constrained and, in some cases, can cause the withdrawal of articles written by legitimate journalists in respected publications, such as Forbes magazine. A journalist recently came to me, expressing frustration that all his articles were removed from a publication based on an anonymous report from a blogger, worried that the blacklisting of his writing will spell the end of his journalism career, after having obtained a degree and worked in the field for many years as a respected financial writer. Such is the power of the Internet, which is allowing a rebirth to yellow journalism. The lack of accountability, education and ethical constraints has resulted in a lack of quality reporting and editorials.
Anti-SLAAP (Strategic Lawsuit Against Public Participation) laws exist in 28 states, the District of Columbia, and Guam. California is one of these states, with one of the strongest anti-SLAAP remedies in the country. The anti-SLAAP laws were designed to summarily dismiss lawsuits that were aimed at censoring, intimidating or silencing critics by allowing aggrieved parties to move for a summary dismissal of the suit,freezing discovery and reversing the burden of proof in cases where a party can successfully allege that the lawsuit restricts constitutionally protected activity, such as freedom of speech, compelling the Plaintiff to demonstrate evidence that it is likely to succeed on the merits without the benefit of discovery.Therefore, if you are aggrieved by an anonymous blogger’s article, who has ruined your reputation or career, you may find yourself having to prove your case upon the filing of your complaint, without the benefit of any evidence, and, if you lose, you have to pay the blogger’s attorney fees.
The law has to keep up with the times and recognize the reality that an algorithm, rather than the free and unrestrained expression of ideas, is now the mainstream of education and information in our society.