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Cynthia L. Counts
C. Amanda Martin

This article is reprinted with the permission of THE ALBANY LAW REVIEW.
The original document was published in Vol. 59, No. 4, Page 1083.

I. Introduction

II. The First Amendment and Its Impact On Varying Technologies

III. Liability In Cyberspace Who Is At Risk? Who Are the Players?
A. Creating A Constitutional Framework For Assessing Liability
B. Outside Cyberspace: Familiar Principles and Defenses in Libel Law
1. The Graffiti Principle
2. The Wire Service Defense
3. The Fault Requirement
C. The Impact of Recent Legislative Action

IV. Jurisdictional Issues: Where Can A Cyberspace Traveler Be Subject To Suit?
A. Familiar Jurisdictional Principles
B. The Basic Framework
C. Jurisdictional Analysis in Libel Cases
D. Jurisdiction in Cyberspace
1. The First Prong of Constitutional Analysis Minimum Contacts
2. The Second Prong Fair Play and Substantial Justice: The Reasonableness Factors

V. Conclusion

Differences in the characteristics of new media justify differences in the First Amendment standards applied to them. If the substance of a transaction has not changed, new technology does not require a new legal rule merely because of its novelty.

I. Introduction

Society has long recognized the power of the pen. For centuries that power has been contingent on getting one's words published and ultimately received by an audience. It has been said that "freedom of the press is guaranteed only to those who own one," and with the cost of newsprint spiraling upward, even those who own a press pay dearly for every line of type they publish.

Conversely, the power of the keyboard is rapidly becoming a force with which to reckon. As a nation, we are on the brink of a new era that will equalize access for anyone with a desire to express an idea. This will open cheaper and faster avenues of publication, and that has the potential to breathe new life into the First Amendment. The electronic superhighway has made possible an egalitarian marketplace of ideas. As one commentator explained: [Online systems] serve a valuable First Amendment function in acting as clearinghouses of information uploaded by their callers. They crucially promote the First Amendment goal of free expression of diverse viewpoints. There are 60,000 or more privately run online systems, and many thousands more university and institutional systems, each with its own point(s) of view, as well as the far greater number of individuals who use those online systems to distribute their own speech and viewpoints to others.

Today, "cyberspace" creates a forum in which everyone can distribute their ideas worldwide with only a few keystrokes and a few dollars per month. Individuals may gain access to areas on cyberspace, such as the World Wide Web, via commercial online services. These users can access a myriad of services, including electronic mail ("E-mail"), discussion groups, interactive classes, interactive magazines, and newspapers. People also can access private electronic bulletin board services (BBS). An individual needs only a computer and modem to begin accessing this cornucopia.

Unlike the printed forms of communication, in which space constraints limit the "news hole," no external forces in cyberspace limit volume. Not only is access to communication afforded to more individuals, but traditional publishers, such as newspapers, have the freedom to publish more extensive and thorough articles online than in print. This increased volume, however, may invite problems. More room for communication creates more room for error, and the task of reviewing the material becomes more onerous. Moreover, the possibilities of the information explosion may cause alarm to some who believe that the marketplace of ideas is laudable in theory, but dangerous in practice. As information has become more accessible and usable, it also becomes more powerful and, some fear, more dangerous. In the hands of such skeptics, the information superhighway could offer an invitation for courts and legislatures to chip away at its First Amendment protection.

This Article proposes that the existing framework for analyzing libel cases should still be adequate to address the liability and jurisdictional issues raised by this new medium. First, this Article will discuss the application of the First Amendment to changing technologies. Second, the Article will propose a legal framework for addressing this new medium. In so doing, the Article addresses the question of who can be liable for electronically published content. Next, the Article will address the question of where an electronic publisher may be held accountable. The Article will conclude that no rational basis exists for the creation of a new liability scheme. Rather, application of strong First Amendment principles and traditional jurisdictional principles will in most cases result in a just resolution of the issues.

II.The First Amendment and Its Impact On Varying Technologies

The single most important source of rights for electronic communications in the United States is the First Amendment of the United States Constitution, which guarantees freedom of speech and of the press. It assures that all users of online systems can communicate freely with others, and is defined so broadly that it applies in some fashion to nearly every online legal situation.

Because cyberspace is a communication medium, it merits the highest level of protection contemplated by our forefathers. The First Amendment is the primary source of rights and protections for players on the information superhighway. A determination of what protections flow from the First Amendment and how those protections are affected by differences in technology is required.

With every technological advance, courts experience growing pains and reevaluate the question of whether the First Amendment has different meanings in different contexts. As with any medium, the information superhighway "must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems."

The Supreme Court's application of First Amendment protections has evolved with advances in communication technology. For example, when the Court was required to decide right-of-access issues, it established one standard on the question of the right of access in the context of the print media, giving newspapers almost complete editorial control. However, the Court altered the level of control granted in the context of broadcast media, and again, in the context of cable systems.

A right of access by someone outside a medium is antithetical to editorial discretion, a crucial part of the "power of the press." The Supreme Court recognized this in Miami Herald Publishing Co. v. Tornillo, when it held unconstitutional Florida's right-of-reply statute that guaranteed political candidates space to respond to criticism in the newspaper. The Court stated that "[c]ompelling editors or publishers to publish that which `reason' tells them should not be published . . . inescapably `dampens the vigor and limits the variety of public debate.'"

By contrast, the Supreme Court has justified regulation in exchange for use of the public airways, a scarce commodity. In National Broadcasting Co. v. United States, the Court allowed the Federal Communication Commission ("FCC") to consider programming content in making licensing decisions: Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to governmental regulation. Because it cannot be used by all, some who wish to use it must be denied . . . . The right of free speech does not include, however, the right to use the facilities of radio without a license . . . . The standard [Congress] provided for the licensing of stations was the public interest, convenience or necessity.

A quarter century later, the Court applied the same reasoning to uphold the FCC's "fairness doctrine" which required broadcasters to air diverse viewpoints of controversial issues. Under this doctrine, radio broadcasters had to give "adequate coverage to public issues" assuring that the coverage "accurately reflects the opposing views." As the Court in Red Lion noted, however, the justification for the fairness doctrine was that "[t]he right of free speech of a broadcaster, the user of a sound truck, or any other individual does not embrace a right to snuff out the free speech of others."

Although the FCC abandoned the fairness doctrine in 1987, it implemented Congress's "must-carry" policy to govern cable system operators. Under the FCC's so-called "must-carry" rules, broadcast stations had three options: (1) require cable systems to include a station on the cable system, (2) decline to include the station on the system, or (3) allow the cable system to pay for the station's inclusion.

The Supreme Court recently considered this new policy under the First Amendment in Turner Broadcasting System, Inc. v. FCC. The plaintiffs argued that the regulation infringed the First Amendment rights of cable operators. The Court identified that "[t]he justification for our distinct approach to broadcast regulation rests upon the unique physical limitations of the broadcast medium." It quoted an earlier decision holding "`that the special interest of the Federal Government in regulation of the broadcast media does not readily translate into a justification for regulation of other means of communication.'" While acknowledging that regulating broadcast media differs from regulating cable systems, the Court nonetheless found that "the bottleneck monopoly power exercised by cable operators and the dangers this power poses to the viability of broadcast television" might justify the must-carry regulations.

The Court found that the must-carry regulations were content-neutral. Therefore, the government bore the burden of proving: (1) the regulation furthers an important or substantial governmental interest; (2) the governmental interest is unrelated to the suppression of free expression; and (3) the incidental restriction on the alleged First Amendment freedom is no greater than is essential to the furtherance of that interest.

In Turner, the Court narrowed this analysis to a two-part determination: (1) whether the harms targeted by the regulation were real, and (2) whether the regulation would remedy the dangers in a direct and material fashion. Ultimately, the Court held that genuine issues of material fact were in dispute and vacated the lower court's entry of summary judgment on behalf of the government.

This judicial history demonstrates that the nature of a particular technology affects the First Amendment analysis the Court applies. As with all developing technologies, the advent of the information superhighway invites attention to the question of what particular difficulties will arise. Unfortunately, there are few court cases to lend guidance at this point. Two key questions rise to the forefront. First, who is at risk for liability on the information superhighway? Second, can existing jurisdictional precedent adequately address the unique aspects of this burgeoning mode of communication?

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