The Right of Reply

Can the Internet End Libel Laws?
By JULIE HILDEN

The advent of the Internet has profoundly changed the practical realities relating to libel law. Yet libel law -- which is a creature of state law, but incorporates important requirements imposed by Supreme Court First Amendment jurisprudence -- has not remotely caught up with these changes.

In this column, I'll discuss the alterations that I believe should be made to modernize libel law for the Internet age, and consider the challenges that the Internet poses in this area.

The Federalization of Libel Law Should Be a No-Brainer

One way in which libel law should change in light of the Internet, is clear, in my view: The law should be federalized -- that is, it should be precisely uniform across all fifty states, and all suits should be litigated in a single, national tribunal. Now that we have a truly national "marketplace of ideas," via the Internet, libel law should no longer be subject to state-by-state litigation.

Currently, the applicable law in a libel case is typically that of the plaintiff's home state, on the theory that that is where his or her reputation exists. Typically, too, the defendant must travel to the plaintiff's home state to litigate the case -- on the theory that the defendant took aim at the plaintiff's reputation which, again, primarily exists in that state.

This theory doesn't work, though, when the libel suit is weak or frivolous and no one was truly libeled; in such suits, no unfair targeting occurred in the first place, so there is no good reason at all to litigate in the plaintiff's home state. And there is a strong downside, always, to a home-state litigation rule: Local juries are likely to unfairly favor local plaintiffs.

There are other downsides, as well, to litigating libel cases state-by-state: Because of the subtle state-by-state variances in libel law, much costly attorney time is spent researching and litigating the ins and outs of fifty different states' varying libel law -- with these costs placing a heavy burden on media entities and predictably chilling constitutionally-protected speech. (Even a true statement that's a reputational bombshell for the subject may still be sued upon, in an attempt to protect the subject's reputation in the media.)

A single federal body of libel law would enable attorneys to become true libel-law gurus, easily keeping up on every single development in the field, and thus keeping costs down for clients.

Bizarrely, the home-state-reputation rule applies to ordinary people and the famous alike: For instance, if Al Gore were to sue in response to recent claims that his marriage was ended by an affair -- and not by mutual decision, as he has said -- then he would likely be able to invoke the libel law of Tennessee, where he owns a house, and force the defendant to litigate there.

But surely, since Gore has a national reputation, a federal -- not state -- libel standard ought to govern his suit. There is no good reason for a suit filed by Gore against a national publication or a nationally-accessible Website to be litigated in Tennessee in particular.

In the Age of the Internet, Even an Ordinary Person May Be Said to Have a National Reputation, In a Sense

Notably, too, what is true for Gore is true, albeit to a much lesser extent, for many Americans: The idea that one's reputation is located solely, or even primarily, where one lives is now a convenient fiction.

An American may well grow up and attend high school in one state, but ultimately live, study, and/or work in two or three others -- thus ending up with significant reputations in each of the various states. And those states are just the beginning: You have a reputation wherever you are talked about, or thought about. In the Internet Age, that could be in a dozen states, or even in every State in the Union.

Over time, the idea that your reputation exists only -- or at least primarily -- where you live, or have lived, is proving more and more false. A reputation now may stand or fall with comments that are made on Facebook, or with the result of a Google search -- and those comments may be made, and that search may be performed, from any State. As a result, topics -- which can be used to frame searches -- are increasingly important as a way of categorizing speech, while the writer's or searcher's location is often entirely beside the point.

Granted, libel law has always recognized that some people are celebrities in only one arena or on only one topic (say, fly-fishing or Scrabble-playing) -- and thus are only "limited-purpose" public figures. In that field of specialty, where such people already have an influential podium, the law takes into account that their replies to negative remarks concerning them will be carefully listened to by the relevant audiences. Thus, in that topic area alone, the law holds that these figures must face the higher First Amendment hurdles that general-purpose public figures (such as public officials) must face, in order to succeed in bringing a libel suit.

In sum, if you are a big fish in a small pond, then libel law treats you accordingly, as long as the statement at issue concerns that very pond.

But libel law has never grappled with the implications of its recognition of limited-purpose public figures, as the Internet has dramatically expanded that category: For many people now, online reputations are not only, or even primarily, geographic; they are topical. Accordingly, many of us could be considered to be limited-purpose public figures regarding a particular topic, or within a particular sub-community.

It used to be that the paradigm for a limited-purpose public figure would be, say, an amateur boxer who is well-known in boxing circles in his home state, and is often quoted in local media on the subject of boxing. Now, however, the paradigm for a limited-purpose public figure should, instead, be someone like movie reviewer Harry Knowles, of the website aintitcoolnews.

Knowles has a powerful podium when it comes to movies, so if he ever feels that he has been libeled regarding his movie reviews, we can be sure that his side of the dispute will get a fair hearing from the fans who belong to the same online community. Thus, it's fair to impose a high bar before Knowles is allowed to go to court to sue a person who he believes libeled him. Knowles already has recourse to his community to clear his name; he arguably doesn't necessarily need recourse to the law as well -- or, at least, he should be able to live with higher libel standards if he sues.

It's time to federalize libel law to reflect the reality that geographic reputation is increasingly being replaced by topical reputation, in light of the Internet's influence. As noted above, we can do so by instituting a uniform national set of libel-law standards, and by creating a national forum for libel cases that erases home-state jurors' likely bias in favor of home-state plaintiffs.

The Possibility of Replacing Libel Law with a Right-of-Conjoined-Reply and/or a Private Tribunal

More radically, the existence of the Internet makes a strong case not only for federalizing libel law, but also for possibly replacing legal remedies with a private right-to-reply solution.

Rather than having a right to sue, a would-be plaintiff would have a right to ensure that his or her reply must be appended to the original, allegedly libelous statement, wherever it appears on the Internet. The "strange bedfellows" of the remark and the reply could never be separated.

Such a remedy, if legally mandated, might trigger a valid constitutional objection, based on the theory that the government cannot, consist with the First Amendment, compel a speaker to speak, but it is still an interesting possible alternative to full-on libel litigation (and could often be a tool to settle such litigation). And if private parties consented to the system, via Terms of Use, the constitutional objection could be moot.

Interestingly, the chance to reply on the Internet may already be obviating the need for some libel suits. In a recent New York Observer article, John Koblin noted that, in recent years, retiring Time Inc. attorney Robin Bierstedt has seen a dramatic decline in libel suits against Time Inc. publications. Similarly, New York Times Company Assistant General Counsel George Freeman told Koblin that the company's level of libel suits has "never been lower."

Some blame the recession for this phenomenon. After all, it costs money to litigate, whether the money is the client's or a contingency-fee attorney's. Others suggest that -- as journalism's revenue increasingly shrinks -- embattled journalists and media institutions are less willing to risk lawsuits by making aggressive and damaging claims: Even if journalists are quite confident that such claims are true, it is another issue whether they can defend the claims' truth in court (or, at least, defend the reporter's state of mind in making the claims). Newspapers may well prefer to spend their diminishing budgets on reporting, not litigation.

But the most intriguing possible cause for the drop in libel suits, in my view, is the influence of the Internet. Koblin's article suggests two Web-based factors that could be responsible for the current low level of libel litigation:

First, the Web offers the chance for the target of a damaging remark to reply instantly, and/or to get a quick correction from the newspaper. Moreover, that reply or correction is subsequently likely to be part of the very same search results that contain the initial remark. Thus, even if the reply is not required to be appended to the original statement, in practice it will be.

In the past, only a truly diligent newspaper reader -- one with an excellent memory, who faithfully read the paper every day -- was likely to see both a damaging story and a correction or reply from the target of the story. But in the age of Google, it is very likely that both the story and the correction or reply will be unearthed by a given search -- especially if their titles are very alike, which the person writing the reply or correction can easily ensure.

Second, search results are so voluminous, and so quickly updated, that a damaging remark may soon be lost in the mix of our new, accelerated news cycle. Accordingly, the target of a libelous remark may fear that filing a lawsuit -- which will itself make news -- will only revive the remark, and thus do further damage. This second point, of course, holds more true for celebrities -- who are often the subject of a constant churn of news, with each news item fairly short-lived -- than for private individuals, each of whom may only make the news once in his or her lifetime.

I believe a third, and related factor may operate in some celebrity cases, as well: A denial may be a kind of declaration of "open season" on the denier, by the paparazzi. If a damaging remark is made, and no response is given, then it may die away. But if a strong denial is given -- and/or a suit filed -- it may invite a game of "Gotcha!" to prove that a celebrity is, for instance, cheating, drinking, or taking drugs.

In the end, private individuals and celebrities alike might benefit from the creation of a national tribunal that either adjudicates the truth of contested statements (in which case, the tribunal's neutrality and the judges' independence would need to be carefully ensured), or simply polices the faithfulness of the conjoining of the original allegation and the ensuing reply from the target.

With respect to all these issues, I believe the bottom line is that we will need to substantially reinvent libel law in what is truly a different media world. In today's world, concepts such as "YouTube celebrity" blur the line between private and public figures, and anyone can try to capture the attention of a large -- even national -- audience.

And in today's world, if a right of reply is guaranteed, and that reply is conjoined with the original posting, any of us may have a podium comparable to that of a major media organization.

These realities compel a wholesale rethinking of an area of law that has not changed much since the Supreme Court fused state-based libel law with federal First Amendment law in New York Times Co. v. Sullivan. That was forty-six years ago, in 1964; technology and culture have changed profoundly since then, and so should the law.