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.