The Old Media and the New Must Work Together to Preserve Free Speech Values

EFF Civil Liberties Director David Greene delivered the following as a keynote address on March 6, 2020, at the Media Law and Policy in the Digital Age: Global Challenges and Opportunities symposium hosted by Indiana University’s Center for International Media Law and Policy Studies and its Barbara Restle Press Law Project.

A few years ago, I was summoned to the office of an eminent TV journalist, one of those people commonly described as “the dean of . . . ” something. He wanted me to come by, he said, because “he had an idea to run by me.” So I went. 

After the small talk – we both had suffered the same back injury! – he ran his idea by me. This is a paraphrase: “We should bring back the Fairness Doctrine. And not just for broadcast news, but for all media, especially the Internet. Looking back, I think it made us better journalists.” He was planning a conference and wanted this to be a major discussion point. In my memory, my jaw dropped cartoonishly all the way to the floor. 

The Fairness Doctrine was a Federal Communications Commission rule that imposed “fair” reporting requirements on radio and television broadcasters. By “broadcasters,” I, and the FCC, mean those entities that have a license to broadcast over a certain over-the-air frequency, as opposed to cable or satellite or now streaming services. It’s the stuff you get for free if you just plug in a TV or radio with an antenna. The Fairness Doctrine had many facets. But the main one required broadcasters to devote time to discussing controversial matters of public interest, and then to air contrasting views as well. In some circumstances this could require the broadcaster to provide reply time to any person. The rule was in effect from 1949 until 1987. I’ll talk more about it a little later. 

As I said, I was taken aback by this eminent journalist’s suggestion. I’ve been a First Amendment lawyer for 20+ years and have worked with and on behalf of journalists and news organizations for much of that time. During all that time, without exception, journalists considered the fairness doctrine to be a serious infringement on editorial discretion and freedom of the press in general. How could this person who I knew to be a champion of a free press want to revive it, and apply it to all news media?

So I responded that it was a terrible idea and probably unconstitutional. Needless to say, I was not invited to participate in his conference.

Unfortunately, this was not an aberration. I’ve seen it repeated in different forms ever since: news media advocates calling for regulation that would have until recently been seen as heretical to our established conceptions of a free press. 

The cause, of course, is social media and Internet platforms and Big Tech.

But it’s not that the advent and popularity of social media has adjusted our free press priorities. Rather, social media and the Internet in general has changed the business of news reporting. Legacy new media, especially print, are largely suffering financially, especially at the regional and local levels. And when they see certain social media companies – Facebook, Instagram, Twitter, Google, YouTube, Snapchat – thriving, they reach out for ways to fight these intruders. To look for ways to level the playing field.

I completely understand the frustration that motivates this. I also fear a country with diminished or no local or regional reporting. I’ve seen that there is so much less money now to fund public records requests and court access litigation. Indeed, these lawsuits now often fall to nonprofit organizations like EFF. I subscribe to home delivery of two newspapers and a bunch of magazines. 

But it’s a huge mistake to let this despair lead us to a path of abandoning or weakening important free press principles and open the door to the regulation of journalism. Especially when, as I will discuss toward the end of this talk, abandoning these principles won’t actually help. 

So my job here today is to convince you that the news media, all facets of it, from news gatherers and reporters to those who simply provide platforms for others to publish to those who simply suggest news reading to others, must stick together and remain unified champions of a free press. To do otherwise is far too dangerous, especially in the anti-press climate cultivated by the sitting Executive branch. 

The Fairness Doctrine 

Over the past few years, I’ve noticed at least three formerly taboo regulatory threats being given some life by those who are otherwise free press champions. 

I’ve already mentioned the Fairness Doctrine. So I’ll start there. As I said earlier, the Fairness Doctrine required broadcasters to present contrasting views of any public controversy. The U.S. Supreme Court upheld the rule in 1969 in a case called Red Lion Broadcasting v. FCC, on the basis that the FCC was merely requiring the broadcaster to momentarily and occasionally share the license that the FCC had granted it. The Court stated, though, that it would reconsider that decision if it became clear that the doctrine was restraining speech (that is, that broadcasters were choosing to avoid discussing public controversies rather than being forced to present both sides of them).

Five years later, the Supreme Court made clear that a similar rule could not be imposed on newspapers. In that case, Miami Herald Co v. Tornillo, the Court struck down a Florida right of reply law that required any newspaper that endorsed a candidate in an election to offer all opponents equal and equally prominent space in the newspaper to respond. The Court explained that such an intrusion into the editorial freedom of a newspaper was per se a violation of the First Amendment. And then in 1996, in ACLU v. Reno, the Supreme Court, in a different context, ruled that the Internet would be treated like print media for the purposes of the First Amendment, not broadcast. 

The FCC revoked the Fairness Doctrine in 1987 (although it formally remained on the books until 2011) after a few lower courts questioned its continuing validity and amid great unpopularity among Republicans in Congress. There are occasional Congressional or FCC-initiated attempts to bring it back – many blame it for the advent of seemingly partisan news broadcasts like Fox News, even though the rule never applied to cable television – but none have been successful. 

To bring back the Fairness Doctrine and then apply it to all media would mark a serious incursion on First Amendment rights.

Enshrining Professional “Ethics Codes” With the Force of Law 

I’ve seen a similar flip with respect to professional ethics, specifically news media advocates urging the legal codification of their voluntary industry ethical standards, embodied in the ethical codes created by professional societies like the Society of Professional Journalists and the Radio and Television News Directors Association, and the National Press Photographers, etc. This typically takes the form of calling for conditioning legal protections for online news production, distribution, aggregation, or recommendation services on following these ethical standards. Like, for example, saying that Wikileaks should be subject to the Espionage Act, because it does not follow such practices, while “ethical journalists” must be exempted from it.

These codes have always been very intentionally voluntary guidelines and not law for several good reasons. 

First, ethics are inherently flexible principles that don’t easily lend themselves to absolute rules, tend to be fact-intensive in application, and can vary greatly depending on number of legitimate and worthy priorities. They are generally an ill fit for the bright lines we insist on for laws that limit speech.

Second, free press advocates have been rightfully concerned that transforming journalism’s ethical codes to legal standards will only lead to vastly increased legal liability for journalists. This could happen both directly — by the codes be written into laws — and indirectly — by the codes becoming the “standard of care” against which judges would assess negligence. “Negligence,” that is, the failure to act reasonably, is a common basis for tort liability. It is typically assessed with reference to a standard of care, that is, the care a reasonable person would have exercised. Were ethical codes to become the standard of care, journalists could bear legal liability any time they failed to follow an ethical rule, and, even worse, have to defend a lawsuit every time their compliance with an ethics rule was even a question. And they would then be held to a higher standard than non-journalists who would only need to act as a “reasonable person,” instead of as a “professional journalist.”

Third, and perhaps most basically, this would be direct governmental regulation of the press, something antithetical to our free speech principles. 

These all remain correct and relevant, and it remains a bad idea to give professional ethical codes the force of law or condition other legal protections on adherence to them. 

Expanding Republication Liability 

The third flip I’ve seen, and this is probably the most common one, is a sudden embrace of republication liability. Republication liability is the idea that you are legally responsible for all statements that you republish even if you accurately quote the original speaker and attribute the statement to them. To have my students truly understand the implications of this rule, that is, to scare them, I like to discuss two examples.

In one case, Little v. Consolidated Publishing, (Ala App 2010), a reporter attended a city council meeting. Her reporting on the meeting included an accurate quotation of a city council member, Spain, who at the meeting repeated rumors that one of his rival council members, Little, was in a personal relationship with a city contractor and thus pushed for her hiring, a move that was now being questioned. The article included another statement from Spain in which he said that if the rumors about Little were untrue, they would be very unfair to Little. The article also included Little’s denial. Nevertheless, Little sued the newspaper for defamation. The court rejected the argument that the publication was true since the rumor was in fact circulating at the time. The court explained that “publication of libelous matter, although purporting to be spoken by a third person, does not protect the publisher, who is liable for what he publishes,” and that it did not matter if in the same article the newspaper had decried the rumor as false.

In another case, Martin v. Wilson Publishing (RI 1985), a newspaper published an article about a real estate developer buying up historic properties in a small village. The article was generally supportive of the development and investment in the village, but explained that some residents were “less than enthusiastic” about the developer’s plans and “doubted his good intentions.” The article then stated that “some residents stretch available facts when they imagine Mr. Martin is connected with the 1974 rash of fires in the village. Local fire official feel that certain local kids did it for kicks.” And the article further expressed doubts about the claims of arson. The developer sued, and the court found that the newspaper could be liable for this republication even though the rumors did in fact exist and even though the newspaper had reported that it believed they were false. 

The republication liability rule apparently dates back to old English common law, the foundation of almost all US tort law. Originally it seems to have been a defense to accurately attribute the statement to the original speaker. But attribution hasn’t helped a reporter since at least 1824, when English courts adopted the present rule, and it quickly was adopted by US courts.

In my twenty or so years of teaching this stuff, republication liability is by far the most counter-intuitive thing I teach. Students commonly refuse to believe it’s true. It leads to absurd results. Countless journalists ignore it and hope they don’t get sued. 

And it gets worse, or at least more complicated. Since at least 1837 (the earliest English case I could find), republication liability has been imposed not just on those who utter or put someone else’s libelous words in print, but also to those who are merely conduits for libel reaching the audience. The 1837 case, Day v. Bream, imposed liability on a courier who delivered a box of handbills that allegedly contained libelous statements in them, unless he could prove that he did not know, and should not have known, of the contents of the box. Early cases similarly impose knowledge-based liability on newsstands, libraries, and booksellers. The American version of this knowledge-based “distributor” liability is most commonly associated with the U.S. Supreme Court’s 1959 decision in Smith v. California, which found that a bookseller could not be convicted of peddling obscene material unless it could be proven that the bookseller knew of the obscene contents of the book. Outside of criminal law, US courts imposed liability on distributors who simply should have known that they were distributing actionable content. 

Given this, there developed two subcategories of republication liability: “distributor liability” for those like booksellers, newsstands, and couriers who merely served as passive conduits for others’ speech; and “publisher liability” for those who engaged with the other person’s speech in some way, whether by editing it, modifying it, affirmatively endorsing it, or including it as part of larger original reporting. For the former, group, the passive distributors, there could be no liability unless they knew, or should have known, of the libelous material. For the latter group, the publishers, they were treated the same as the original speakers whom they quoted. Because one was treated a bit better if they were a passive distributor, the law actually disincentivized editing, curation, or reviewing content for any reason, and thus, some believed, encouraged bad journalism.

Historically, free press advocates have thus steadfastly resisted any expansion of republication liability. Indeed, they have jumped at any opportunity to limit it. 

A Short History of Online Speech Law

So why is this changing now? 

It all started way back in the 1990s, when courts started to apply republication liability to early online communications services, bulletin boards, chat rooms, and even email forwarding. A New York Court found that the online subscription service, Prodigy, which had created a bulletin board called “Money Talk” for its users to share financial tips, was the publisher of an allegedly defamatory statement about the investment banking firm Stratton Oakmont (later immortalized in The Wolf of Wall Street) even though the comment was solely authored by a Prodigy user, and not edited by Prodigy. The court found that Prodigy was nevertheless a publisher, and not merely a distributor, because it (1) maintained community guidelines for users of its bulletin boards, (2) enforced the guidelines by selecting leaders for each bulletin board, and (3) used software to screen all posts for offensive content. This decision was in contrast to a previous decision, Cubby v. Compuserve, in which distributor liability was applied to Compuserve because it lacked any editorial involvement. (Compuserve had created a news forum but contracted out the creation of content to a contractor which then engaged a subcontractor, Rumorville.) 

These holding gave rise to three major concerns about applying these print-world rules to online publication:

1. Scale. While it might be reasonable and practical to ask a newspaper to review all third-party content (like ads, letters to the editor, wire-service stories, and op-eds), it would be nearly impossible for most online services to do so. Online publication facilitates third party content at a scale not seen before. If in order to eliminate liability or even just minimize it to a manageable risk, online intermediaries were required to review all content before it published, online intermediaries wouldn’t exist, because that’s practically impossible.
2. Porn! It’s hard to understate the importance of sexual content in the broad acceptance of the Internet as a means of communication. But as you might imagine, the fear of readily accessible sexual content, and accessible from one’s home without the public shame of  having to go out in public to get it, was one of the first motivators for regulating the Internet. However, because any effort to remove sexual content from a platform would transform a passive distributor to a publisher, the law disincentivized what regulators saw as “responsible” acts by intermediaries to keep sexual content (and other objectionable content) off of their sites. This in effect recognizes the bad disincentives of republication liability that free press complained about for years.
3. The Hecklers Veto. Even distributor liability, with its know-or-should-have-known standard, carries numerous unscalable risks. The heckler’s veto refers to the fact that one who wants to see speech censored need only register a complaint about it, and the speech will be removed regardless of the merits of the complaint. It’s frequently far easier to just remove content than to investigate its truthfulness, obscenity, etc. This problem is magnified by the problem of scale. If it’s difficult to investigate when it’s just a few complaints, it’s impossible when its thousands. As a result, knowledge- or notice-based liability systems are frequently exploited in a way that results in the removal of unobjectionable legally protected speech.

In order to address these concerns, Congress enacted 47 USC § 230, which essentially gets rid of republication liability (both publisher and distributor liability) for much third-party speech. (There were two big exceptions: user speech that infringes intellectual property rights and user speech that violates federal criminal law.) Members of Congress acted on concerns that the unmanageable threat of liability would thwart the growth and wide adoption of the Internet and the development of new communications technologies within it. And those worried about sexual content wanted to remove all disincentives to remove content when an intermediary wanted to do so. 

Section 230 has always been a bit controversial, and has been firmly in the crosshairs of regulators angry about all things online these days. I’m not going to use more time here to go over those various attacks on the law. The point I want to make is that in the past few years, legacy news media advocates have joined the throngs blaming Section 230 for pretty much everything they see as wrong with the Internet – that is, pretty much anything they don’t like about Facebook is because of Section 230. That is, the loss of advertising dollars that used to sustain newspapers.

Again, this is remarkable to me, because as I said, the press has always hated republication liability and sought to chip away at it. But it is now supporting efforts to chip away at some of the protections that are in place. Just a few months ago, the News Media Alliance, as part of convening on Section 230 called by Attorney General Barr, called for reforming of the immunity as part of a larger overhaul of the news media landscape. And – this is important – the Section 230 protections apply to the new media when it publishes non-original content online, like reader comments, op-eds, or advertisements. Indeed, as I wrote a few months back, one of the most widely successful applications of Section 230 is to the online version of legacy news media. And Section 230 also protects individual users when the forward email or maintain a community website. It’s not a Tech Company immunity; it’s a user immunity. 

Moreover, it’s largely assumed that online intermediaries, that is, those who transmit the speech of others, don’t want to screen that speech for misinformation or other harmful speech. While it is true that some services adhere to an unmoderated pipeline model, it’s more the case, especially with the big services like Facebook, You Tube, Twitter, etc., that services very much want to moderate content, but that monitoring and evaluating speech at the appropriate scale is impossible to do well. The vast majority of decisions are highly contextual close calls. This impossibility is exactly why Congress passed Section 230 – faced with liability for making the wrong decision and republishing actionable speech, these intermediaries will err on the side of censorship. And that brand of censorship inevitably has greater impact on already marginalized speakers.

Leveling the Playing Field

Each of these examples of abandonment of traditional free press principles are motivated by the same desire: to level the playing field between traditional news media and online services. That is, the news media now see their ethical and professional norms and legal burdens as giving them a market disadvantage against their competitors for advertising dollars, namely Facebook and Google. And they see the imposition of their norms and legal obligations on these competitors as a matter of fundamental fairness. They in effect want to make “good journalism” a legal requirement.

That’s astounding. Free press advocates have historically recognized the need to support legal challenges aimed at “bad journalism” tabloids like the National Enquirer because they rightfully recognized that those who seek to weaken legal protections target the lowest hanging fruit. And even if you look to defamation law as an example where “good journalism” gives you some legal advantage, free press advocates have rightfully argued that even if they can prove in court that their journalistic practices were solid, to do so is very expensive and the prospect of doing so exerts a powerful chill on reporting. 

And it is really dangerous to hand government the power to reward what it believes to be good journalism and punish what it believes to be the bad. Just imagine the havoc our last press-demeaning administration would wreak with such power. As it is, we have seen press libel suits by President Trump and Devin Nunes, and offhand threats to pull the nonexistent “licenses” of cable broadcasters.

We should be calling for more protections for speakers, writers, and their platforms now, not fewer. I understand that unlike the fairness doctrine or ethics codes, legacy news media advocates aren’t now claiming to love republication liability. Rather, they are saying, “if we are burdened by it, then they should be too.” But still, wouldn’t it be better to level the playing field, as it were, be removing republication liability from everyone, rather than placing the nonsensical and counterproductive legal requirement on everyone? 

As I said above, I understand this perceived unfairness and I am very concerned about the economic instability of our news media ecosystem. But I am also concerned about abandoning free press principles in the false hope that in doing so, we will reclaim some of that stability.

And—I don’t think it will help. I don’t see a connection between the imposition of journalistic norms as legal requirements and the financial disruption to the news media marketplace. That is, I doubt that elevating “good journalism” to the force of law would help stabilize the market place.

There is no historic correlation between advertising income and quality of journalism. That is, advertisers don’t and never have rewarded newspapers with advertising because of their journalistic prowess. Rather, newspapers used to have a functional monopoly over certain types of advertising. If an advertiser wanted an ad to reach most person’s houses, they could either use direct mail or newspapers. Newspapers were especially effective for classified advertising, but also for car sales and other full-spread ads and inserts. Newspapers’ stalwart “sections” of highly marketable news – sports, entertainment, national news – in effect supported local and investigative journalism that standing alone might not have been a draw for either readers of advertisers. 

But seemingly overnight, Craigslist gutted the classified advertising market. It’s not because Craigslist was a more righteous platform to advertise, it’s because a continuously updating online platform with either targeted or broader reach to which any person with an Internet connection can almost instantly add is just a far better way of advertising for such things.

In many ways, and certainly for certain populations, the type of online advertising offered by Facebook and Google is simply a better deal for advertisers. They are not deceiving advertisers into thinking they are “good journalists,” and advertisers don’t really care (nor do I) whether an online service is considered a “publisher” or a “platform.” It’s a legally and practically irrelevant distinction. They just want effective advertising. 

The hope, I think, is that enshrining good journalism into the law will either drive their advertising competitors out of business or burden them with costs that will make them less hugely profitable. At a minimum, it will just make us feel like the system is more fair. But none of that drives advertising dollars back to legacy news media. 

(I’ll acknowledge one exception – Section 230 means that online services can accept certain ads that print publishers could not – ones that are deceptive or misleading or discriminatory. But this is not a significant source of revenue.) 

Moreover, the Internet is not just Facebook and Google, or a few other other large and rich sites. It represents a huge number and variety of communications platforms, from the very very local to the very global. And many of them are not hugely profitable. Many of them serve vital human rights functions, from connecting diaspora communities, to coordinating human rights reporting, to undermining communications bans in oppressive regimes. These are the sites and services that are threatened by the costs the “good journalism” legal standards would impose. Those with lots of money, the very sites these efforts actually target, are the very ones that have the financial wherewithal to absorb them. 

The non-economic reason for giving “good journalism” the force of law is more compelling to me, though not ultimately availing. Ellen Goodman in her recently published paper for the Knight First Amendment Institute writes of the policy need to re-introduce friction into digital journalism in order to restore the optimal signal to noise ratio, “signal” being “information that is truthful and supportive of democratic discourse”; “noise” being that which misinforms and undermines discursive potential.” Journalism norms boost the signal and diminish the noise. Digital delivery of information is relatively frictionless, resulting in less filtering of noise. So, the argument goes, the imposition of good journalism norms inserts productive friction into digital media. 

I see the appeal to this and I understand the goals. Nevertheless, I would look to other methods, as outlined by Goodman to introduce friction – built-in delays or limits on virality (such as what WhatsApp self-imposed)—rather than placing in government’s hands the setting and enforcement of journalistic norms, which is essentially government control of reporting itself.

Aside from what I see as the democratic threat to the government adoption, and thus co-option, of good journalism norms, there are also serious practical concerns.

And this is mostly because whereas a newspaper delivers almost only news, Internet media are typically far more diverse. Most Internet sites are multi-purpose: they may serve news and political advocacy. They may include journalists who have the luxury of attaching their own names to articles and who have the resources to fact-check and lawyers to vet stories. But they may also include political dissidents who must remain pseudonymous, or dissident news organizations whose reporting is otherwise blocked in a country, or independent journalists, or community organizers. Or just the average Internet user sharing information with friends. Were “good journalism” to become the law, these speakers may lose their audiences. I don’t think we want an Internet shrunk down to manageable scale, where user created content is limited so that it is as manageable as the letters to the editor page. 

So, in closing, I urge us all to stay steadfast to our traditional distaste for government regulation of journalistic practice. Good journalism is certainly an ideal. It is an admirable quality to urge any media outlet to adopt and follow. The norms are important and should continue to be taught, not merely to avoid legal liability, but because they serve an important democratic function. But they are not law and should not be.