Libel, Public Figures, and the Net
By Mike Godwin
Article for Internet World
About 2100 words
June 1994 issue


If you've ever expressed strong opinions online, the chances are you've
been flamed.

And the more fervent the flamer, the more likely it is that he or she has
said something defamatory about you--something that, if taken as a factual
statement, would tend to injure your reputation or good name.

Which leaves us to wonder: Why hasn't the Net seen more libel lawsuits? As
we all know by now, "flaming" (defined in Eric Raymond's HACKER'S
DICTIONARY as posting e-mail or public messages "intended to insult and
provoke") is an occupational hazard of net.surfers. Yet in spite of the
millions of U.S. citizens engaged in online conversations (a population
whose growth has accelerated rapidly in recent years), the number of libel
lawsuits related to online media remains in the low single digits. In a
previous INTERNET WORLD column ("Internet Libel: Is The Provider
Responsible?" Nov./Dec. 1993), I suggested that there may be a reason for
the lack of defamation suits on the Net. And explaining this phenomenon
(or, rather, absence of a phenomenon) points us in the direction of an
important aspect of libel--the definition of "public figure."

You may already know that libel law (in the United States at any rate)
distinguishes between "public figures" and private individuals. The reason
for this distinction lies in a Supreme Court case that will be three
decades old this year: New York Times Co. v. Sullivan. This case, decided
by a 9-0 vote of the Court, was the first case to attempt to integrate the
common law of libel with the First Amendment.

	Libel and The New York Times

The facts of the case were straightforward: The New York Times had
published an advertisement called "Heed Their Rising Voices," which
promoted the civil-rights movement in the South, and which solicited
donations. L.B. Sullivan, who was serving as elected commissioner of the
city of Montgomery, Alabama, brought a civil libel suit against the Times
and against certain individuals who were named as sponsors of the
advertisement. Unfortunately for the Times, the advertisement contained a
number of inaccurate statements of fact about civil-rights-related
incidents in Montgomery, Alabama. The inaccuracies were not major
ones--for example, the advertisement stated that certain students had been
expelled for leading a protest on the steps of the Alabama state capitol;
although they had been leaders of that protest, they were in fact expelled
for another incident in which they had demanded service at a segregated
lunch counter at the county courthouse.

But the traditional law of libel cut little slack for small factual
errors. The trial judge instructed the jury that the statements in the ad
were libelous on their face, that falsity and "malice" (a legal term of
art, usually defined as "ill will" or "spite")  on the part of the
advertisers and the Times could be presumed, and that general and
punitive damages could be awarded against each of the defendants, even in
the absence of direct proof of pecuniary loss. This last instruction was
particularly handy for local officials who had been involved in quelling
civil-rights protests, since it would have been hard for them to prove
that their reputations or businesses had been damaged--if anything, their
anti-protest efforts *improved* their reputations in their conservative
communities. The jury found the defendants liable for half a million
dollars each. (Remember that $500,000 in 1964 was "real money.") 

As Anthony Lewis has documented in MAKE NO LAW, his excellent book on the
Times case, public officials had a strong incentive to resort to libel
actions against major Northern newspapers like the Times: the financial
pressure created by numerous lawsuits and large judgements would provide
newspapers with a major disincentive to do critical reporting of
civil-rights issues in the South. Which is why the Times fought the case
all the way to the Supreme Court.

In a now-famous opinion by Justice William Brennan, the Court held that
libel law, as applied by the courts of Alabama, conflicted with the First
Amendment guarantee of freedom of the press. What, then, should the
standards of libel law be? Justice Brennan first noted that "we consider
this case against the background of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and
wide-open, and that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials." He could
easily have been describing Usenet in 1994.

Brennan went on to write that "erroneous statement is inevitable in free
debate" (reporters and editors are only human, after all), and that
therefore libel law must accommodate a certain amount of falsehood "if the
freedoms of expression are to have the 'breathing space'" that they need
to survive. Since discussion of public officials and their work is central
to democratic debate, he reasoned, it follows that we should make special
allowances for debate about such officials. A public official can win a
libel lawsuit under the First Amendment, wrote Brennan, only if he or she
can prove "actual malice" on the part of the defendant, where proof of
"actual malice" is defined as proof that the statement was made with
"knowledge that it was false or with reckless disregard of whether it was
false or not." (In other words, the term "actual malice" is defined quite
differently from the older term "malice" mentioned above.)

This rule about public officials was later extended to public figures in
general--the Court recognized that sometimes news stories about highly
public individuals is central to democracy even when the individual
doesn't happen to be a public official. Ross Perot comes to mind as a
recent example of such a public figure. 

But this extension of the ruling of New York Times Co. v. Sullivan led to
new problems--how can you tell whether someone's a public figure or not?
Is anyone who's been written about in the press a public figure simply
because some newspaper editor thought a story was newsworthy? If that were
so, there'd be no distinction between public figures and anyone else--the
minute your name appeared in print, you'd be a public figure, and you'd
have to prove "actual malice" (and not, say, mere negligence on the part
of the reporter) in order to win your case.

And in practical terms, proving "actual malice" can be difficult--the
courts are put in the position of inquiring into how much a reporter knew
or didn't know at the time of the story, and into the reporter's attitudes
at the time of the story. That's why libel lawsuits involving public
figures often turn on the evidence found in reporters' notebooks.

	Defining public and private figures

The Supreme Court revisited the public-figure issue a number of times in
the decade after the Times case, but didn't come up with a lasting answer
to this problem until Gertz v. Robert Welch, Inc. (1974). Justice Powell,
writing for the majority, outlined the basic distinction between public
and private figures, and justified their different treatment in libel law.
First, the definition of public figure:

"In some instances an individual may achieve such pervasive fame or
notoriety that he becomes a public figure for all purposes and in all
contexts. More commonly, an individual voluntarily injects himself or is
drawn into a particular public controversy and thereby becomes a public
figure for a limited range of issues. In either case such person assume
special prominence in the resolution of public questions."

In short, if you're not famous, and if you haven't (in Powell's words)
"thrust [yourself] into the vortex" of public debate, you're a private
individual. And in most states private individuals bringing a defamation
lawsuit face a less rigorous standard of proof than "actual malice."

But Gertz is also an interesting case because it goes into greater depth
in explaining why it makes sense to give public figures less protection
under libel law than we give private individuals. Powell writes that the
Court has "no difficulty in distinguishing among defamation plaintiffs.
The first remedy of any victim of defamation is self-help--using available
opportunities to contradict the lie or correct the error and thereby to
minimize its adverse impact on reputation. Public officials and public
figures, he writes, usually enjoy significantly greater access to the
channels of effective communication and hence have a more realistic
opportunity to counteract false statements than private individuals
normally enjoy. Private individuals are therefore more vulnerable to
injury, and the state interest in protecting them is correspondingly
greater."

Under the First Amendment, in other words, the *preferred* response to a
defamation problem is to fix it yourself. But since private individuals
normally don't have the kind of access to mass media it takes to correct
the record, the First Amendment allows the states to use libel law to
level the playing field, making it easier for private individuals to
counter the damage that can be done to their reputations by mass media.

These two factors--the definition of "public figure" and the rationale for
treating public figures differently--play out in unique ways on the Net.
First of all, far more people on Usenet and CompuServe (to take two
examples) can be said to "thrust themselves into the vortex" of public
debate. If online conferencing means anything, it means the fostering of
outspokenness--in effect, every opinionated individual has a microphone
and an audience, and regular participants in online discussions may even
became generally famous in their "virtual communities." It's almost
trivially easy to become a public figure on the Net.

Secondly, the comparative openness of access to the Net means that a lot
more people who feel they've had their reputations besmirched have access
to self-help. If some bozo writes 100 lines of false statement and
innuendo about your sex life or personal habits, you can write 500 lines
of point-by-point refutation.

These factors may make libel law increasingly irrelevant, at least as far
as online conferencing is concerned. It's worth remembering that
relatively few people ever actually sue for libel. For one thing, it's
expensive, which means you either have to be rich, or you have to have
such a convincing case that you can persuade a lawyer to take your case on
a contingency-fee basis. For another, the long, drawn-out process of suing
someone for damage to your reputation is almost always wearying and very
rarely satisfying. (For an excellent discussion of the practical aspects
and disincentives of libel lawsuits in the post-New York Times era, see
L.A. Powe's recent book, THE FOURTH ESTATE AND THE CONSTITUTION.)

On the Net, in contrast, calling your defamer to account is comparatively
easy--quite probably, if your message was online in some topical area,
such as a mailing list or Usenet Newsgroup, so were the corresponding
flames. And while few flame wars ever end in a clear win for one side or
the other, there's still the deep satisfaction that comes of knowing
you're in the right, and that you've responded to every false statement
anyone has made about you. It's a "day in court" that you can have over
and over again, and it normally comes cheap. (This assumes you're not
stealing time from work to answer your critics.)

So, I'm going to stick my neck out and make a prediction: in spite of the
fierce invective, strong feelings, and often-defamatory statements one
tends to see in net.arguments, I predict that libel lawsuits will never be
a significant factor when it comes to heated online discussions. It's far
easier to hit the "reply"  key.

--------
Mike Godwin (mnemonic@eff.org) is online counsel for the Electronic
Frontier Foundation, where he advises users of electronic networks about
their legal rights and responsibilities, and instructs criminal lawyers,
law-enforcement personnel, and others about computer civil-liberties
issues.

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