The foray by content providers into online distribution of news raises a myriad of legal and policy issues for both traditional news media outlets and a host of other news distributors. Although the application of First Amendment principles and tort rules to new technologies is not a novel issue, the newest communication medium, the Internet, presents an array of challenges to traditional communication law. This chapter begins with a discussion of media regulatory models that have evolved in response to the emergence of new communication technologies. It then examines how existing legal principles have been applied to the Internet in two areas critical to online news. First is the question of personal jurisdiction. Where in the world can news organizations and journalists be forced to defend themselves against lawsuits based on their online publications? The second issue discussed in the chapter is that of statutory immunity provided to interactive computer services for republishing on the Internet information provided by third parties.
MASS MEDIA REGULATORY MODELS
Each mode of expression has unique characteristics. Judges have long acknowledged the need to decide First Amendment questions by taking account of the particular medium of expression involved because “differences in the characteristics of new media justify … differences in the First Amendment standards applied to them.”1 When new technologies of mass communication emerge they are invariably subject to legal disputes, the resolutions of which eventually clarify their roles in our system of freedom of expression. The following discussion of how the First Amendment applies to exist media may assist in the analysis of how the Internet may be treated.
The Print Model
The ratification of the First Amendment and the rest of the original Bill of Rights in 1791 restricted the power of the new federal government to abridge freedom of speech and press. Legislators of the day had a rather limited view of the scope of the country’s system of freedom of expression; their primary purpose in passing the amendment was to prevent prior restraints (censorship) by the newly created federal government. Although many states provided some protection for expressive activity in their individual constitutions, including specific protections for the press, the federal First Amendment did not restrict state abridgement of expression until 1925 when the U.S. Supreme Court finally recognized freedom of expression as a fundamental liberty protected from state encroachment.2 Nonetheless, over the years the courts have expanded protection for newspapers and other print media into what is today referred to as the print model of First Amendment regulation. The print model offers robust protection to an unlicensed printed press and incorporates a spectrum of well-established principles (e.g., the freedom to publish and protections against compulsory publication) that have resulted in the print medium being the least regulated of our outlets of mass communication. Although the First Amendment does not bestow absolute protection on the print media—they cannot, for example, escape punishment for the publication of obscenity or the legal responsibility for defamation—the print model is the gold standard against which the perimeters of First Amendment protection for other communication media are gauged.
The Broadcast Model
Soon after radio broadcasting emerged in the 1920s, the need for government coordination of the radio spectrum to check the widespread signal interference threatening the fledgling medium became apparent. The resulting licensing scheme limited the number of stations utilizing the airwaves and required by statute that broadcasters serve the public interest in return for the grant of a valuable license.3 Thus, the “scarcity” of government-issued broadcast licenses to use the public’s airwaves became the justification for imposing regulations on broadcasting that would not survive First Amendment scrutiny if applied to print media. That broadcasting could be regulated under a reduced standard of First Amendment protection was first confirmed by the U.S. Supreme Court in 19434 and reaffirmed in 1969 when the Court said “[w]here there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.”5 The number and scope of public-interest-based broadcast regulations have varied over the years but diminished substantially following a deregulatory trend beginning in the 1980s. Nevertheless, broadcasters’ inferior First Amendment status compared to that of other media is illustrated by current regulations, such as the political broadcasting rules, limits on advertisements during children’s television programming, a requirement for television stations to air educational and informational programming for children, a ban on tobacco advertising, and requirements to air programs designed to address community problems. Scarcity theory as a regulatory rationale has come under increased attack over the years as the number of broadcasting stations and other outlets of electronic mass communication proliferated. Despite its uncertain premise in modern times, scarcity remains a recognized legal theory, albeit one substantially weakened by an expanding world of electronic mass communication. A second rationale for regulation of broadcasting emerged in the context of restrictions on the broadcast of indecent (but nonobscene) content. Government restrictions on indecent fare are unconstitutional when applied to print media but survive First Amendment review for broadcasting because of the “intrusive” nature of the medium and its unique accessibility to children. Because broadcast signals enter the home without invitation and a person may be unexpectedly assaulted by indecent content, restrictions on the times when such programming may be aired have been upheld by the U.S. Supreme Court,6 despite the constitutionally protected nature of the material for adults.