The Seattle Times’ editors just seem to love stories like this — “Online ranters increasingly pay a price” — apparently drooling for the day when uppity bloggers like me are put in our place.
The Internet has allowed tens of millions of Americans to be published writers. But it also has led to a surge in lawsuits from those who say they were hurt, defamed or threatened by what they read, according to groups that track media lawsuits.
[…] “Most people have no idea of the liability they face when they publish something online,” said Eric Goldman, who teaches Internet law at Santa Clara University in California. “A whole new generation can publish now, but they don’t understand the legal dangers they could face. People are shocked to learn they can be sued for posting something that says, ‘My dentist stinks.’ “
I’ve never claimed that bloggers and commenters should be free to defame their subjects with impunity, but the example above shows why your typical online citizen journalist/participant needs more protection from defamation suits, not less. Obviously, anybody should be allowed to go online and say “my dentist stinks,” because that is a statement of opinion for which one would likely never be found liable in court. I think the Seattle Times editorial board stinks; good luck winning a defamation suit over that.
But just being sued for defamation by a determined plaintiff is enough to crush one financially, thus chilling public discourse via the mere threat of legal action. Yet this is exactly the kinda fearful mindset the the Times seems to be cheerleading.
Times Crown Prince Ryan Blethen, in a previous opinion piece, blames bloggers like me for this very real and imminent threat to online speech, warning that they should “learn to check themselves, and use a modicum of restraint” before, you know, some deep-pocketed asshole decides to make an example of us. But the plaintiff’s side of our defamation laws seems an awfully odd position for a future newspaper publisher to stake out… unless, of course, you view it within the broader context of the industry’s dramatic decline, and Blethen’s documented history of blaming his paper’s woes on external forces rather than, say, his own boneheaded idea to leverage the family business by buying newspapers in Maine. (I’m just sayin’.)
The problem as I see it is that defamation laws that evolved to address the unique circumstances of print and broadcast are simply not well suited to the realities of our more democratic, online media landscape, a nuance that, as I’ve written before, appears to escape Blethen the Younger:
And that is what Blethen, heir to a dead tree publishing throne, obviously doesn’t understand about this new medium. HA isn’t a “publication,” and my words aren’t “spun off the press” in some inviolable, datelined tome. A blog is an ever evolving dialectic, a give and take, a living conversation between writers and readers, and readers with each other, and between one blogging community with the blogosphere as a whole. HA may be my own personal realm, but the world is my fact checker.
Under the old paradigm, where the scarcity of the airwaves and the huge financial barriers to market entry left the bulk of the media in the hands of a powerful and wealthy few, the libel laws were often the best or only defense against the indiscriminate, negligent, and malicious misuse of the power of the press. But in this new medium, this distributed, democratic and decentralized paradigm of the Internet, the best defense against bad journalism is more journalism, the best remedy for falsehood is the truth, and aggrieved parties should only look to the courts as a desperate and last resort.
… [For] in a media landscape increasingly dominated by freelancers, contractors and lone wolves outside the protection of deep-pocketed corporate overlords, the mere threat of costly legal action to resolve disputes threatens the viability of the medium itself, potentially shielding those able to afford attorneys from legitimate criticism by those of us who cannot.
In other words, our defamation laws evolved to protect the average citizenry from powerful publishers like Blethen, not the other way around.
It is, in fact, not reckless bloggers but this blogger-beware meme that presents the real threat to the viability of the Internet as a meaningful and credible medium for disseminating dissent and facilitating public debate. Blethen argues that a lowly comment troll can and should be held to the same defamation standards as a Rupert Murdoch or a, well, Ryan Blethen, but this would be the legal equivalent of hitting a nail with a pile driver.
Unlike Blethen I don’t have attorneys on staff or on retainer, and thus I lack the opportunity to take every potentially controversial post I write, and run it past legal. Neither can I afford to defend myself against even the most frivolous of SLAPP suits. The alternative, which Blethen seems to advocate, is that I write fearfully.
Media-law experts repeat the advice that bloggers and e-mailers need to think twice before sending a message.
“Before you speak ill of anyone online,” Baron said, “you should think hard before pressing the ‘send’ button.”
What an utterly oppressive and ultimately undemocratic sentiment.
The balance that needs to be struck, and that needs to be reflected in our laws, is the balance between the individual harm that can come from truly reckless and malicious free speech, as opposed to the societal harm that comes from crushing dissent. Personally, I’d argue that a legal standard that puts one at risk of financial ruin for posting the words “my dentist stinks,” clearly strikes the wrong balance. But Ryan Blethen and his newspaper apparently disagree, otherwise, I suppose, they would he would be advocating for the law to be changed, rather than for bloggers like me to fearfully mind it.
“My dentist stinks” is author’s opinion, not a purported statement of fact, and therefore is not considered libel by any court – a fact that any journalist, and anyone who teaches Internet law, should and almost certainly does know.
Anyone can sue anyone over anything, of course, which is why the risk of a “my dentist stinks” suit is actually a great example of how vulnerable bloggers and free lance journalists are to frivolous suits. But for some reason that’s not the story the Times wants to tell. Hmm.
The Boston Herald and the LA Times, and countless other newspapers, also loved the story and printed it.
Once again, Goldy goes well out of his way to connect the Seattle Times to an issue when it isn’t necessary. He could have just commented on the story itself, but by making it about the Seattle Times, he detracts from whatever argument he was trying to make, and one comes away with the feeling like this is just further sour grapes on Goldy’s part for some past, unspoken wrong the Seattle Times done did on him.
Arguably, what you do here increasingly matters more than the dead tree folks. And your point about blogs being a coop venture between authors and readers is spot on. A prime example is this thread here @HA:
http://horsesass.org/?p=29319#comments
The thread was a hell of an enlightening read. Kudos to rhp, frogg and the other commenters!
What ever it takes to muzzle alternative venues, so that the Times is the sole source of news and information again.
Do you also see an undercurrent of wanting to muzzle the sources of information that do not agree with the newspaper? Like unions are bad. All tax cuts are good.
I would have to agree that there is quite a future in the new-fangled horseless carriages too, which I’m sure promise some day to free tens of millions of Americans from animal husbandry.
Let youngsters think what they like, but by gum, for my money you can’t enjoy a proper Sunday drive whizzing around above 15 miles an hour.
Instead of constantly ranting at Seattle Times, you should get out more.
Danger! Danger! The world is a scary and dangerous place! Don’t write anything on the net or you’ll lose your house and your job! I’ll never understand the righties need to live in a constant state of fear.
H.L. Mencken once said something to the effect that in America you are free to say what you want, as long as it’s the same thing everyone else is saying.
re 7: …and maybe you should wipe your ass with sandpaper.
Troll @2 wrote:
Except you fail to recognize that the article as printed in the Seattle Times includes the following note: “Seattle Times staff contributed to this report.” The Seattle Times staff liberally altered the original article by David Savage to suit their purposes.
Continuing anger and incessant obsession towards The Times for round-filing your application and resume once again, eh, Goldy?
Don’t worry about any lawsuits, since you don’t work and really don’t have shit except a dilapidated old house and a piece of shit Nissan, there’s nothing a judgment against you would really do. A hollow victory at best. However, it would be entertaining to watch you shriek and yell and flail your little arms all over the place.
I suggest you look in the mirror; someday you’ll come to realize that you’re not even close to being as important or relevant as you think you are.
Get a job, pay taxes, and work for a living instead of begging for handouts from the H.A. Happy Hooligans here under the guise of a “fund drive”. You will find you’ll become far more credible than you are at present. Good luck, and I mean that sincerely. :)
And @2 Troll:
Seconded.
As one of my lawyers constantly reminds me, the surest way to defend a libel/slander/defamation suit is to include a kernel of verifiable fact. Truth wins out regardless of the pockets.
Mark 1 @ 12
And yet somehow, you feel compelled to regularly come onto this site to argue with Goldy….
I come here to fuck with you unemployed socialist-wannabee Libtards, and your little H.A. Queen Goldy and his shortcomings (and I mean that in both senses of the word). It’s fun to see such ignorance and watch you sheeple bbaaahhhh at Lord Obama and his minions. It’s like tossing a large beach ball around in a crowded rock concert. :)
Shorter Goldy: I(bloggers) shouldnt have to play by the same rules as everyone else.
“I come here to fuck with you unemployed socialist-wannabee”
Is that what you’ve been doing? Shit, Mark, and here I figured you were here to show us that you’re just another dumbfuck, wingnut ‘tard, maybe a wee bit more stupified than most, and with nothing better to do than to come here and make a total ass of yourself.
668 @17,
Actually, yeah, bloggers shouldn’t have to play be the same rules as newspapers. I mean, you can’t constantly dismiss us as not credible, because we don’t have a newspaper masthead’s stamp of approval, and then at the same time hold us up to the same legal standard. I mean, if we’re not credible, then how can we possibly defame anybody?
Likewise, an anonymous troll is exactly that, an anonymous troll, and should be read in that context. Should I sue Mark1 for his repeated false claims that I applied for a job at the Times, or should I just continue to ignore him because he’s a cowardly anonymous troll who has zero credibility and thus can cause my reputation zero damage?
See what I mean? A false statement, negligent/malicious or not, is far less potentially damaging coming from an anonymous troll than from a demi-credible blogger like me, while an equally false statement coming from me would be far less damaging than it would coming from the Seattle Times. So why should the law treat us equally?
Uh, Geov @1, nah.
“My dentist stinks.” is an example 1st Amendment lawyers use to try and keep reporters from libeling inadvertently, which is how most libel cases are lost.
If you are known, then you are actually naming your dentist and you are saying that she is incompetent, a statement provably true or false. It is not opinion to the dentist or to the courts. If you are REALLY known, you’ll be settling for six figures.
Goldy @19. I have to disagree with you there. It’s not up to Ryan Blethen. It’s up to some guy in a black dress listening to two expensive lawyers (one of whom is on your tab) arguing about whether you did or did not defame and cause damage. The medium matters not. It could be a billboard, a flyer, 10,000 helium balloons… or a blog.
Paddy @20,
You’re arguing the way the law now works. I’m arguing the way the law should work.
Let’s be clear, one defamation suit, frivolous or not, and unless the community and/or pro bono attorneys come to my defense, I lose my house, my meager retirement account, and just about all my assets.
File a defamation suit against Ryan Blethen, and nothing personal happens to him.
Perhaps the fact that I haven’t yet been sued means I’m not as much of a nuisance as I like to imagine myself, or perhaps it’s because I’m enough of a nuisance that I likely would get the legal support I’d need?
But don’t believe for a second that powerful, wealthy interests won’t abuse the courts to shut up dissenting voices if those voices prove damaging enough to their interests.