Does it make sense to discriminate against a blogger, a YouTuber, or a Tweet writer—by having the courts apply a different First Amendment standard, one that creates a higher likelihood of liability in defamation lawsuits—just because those social-media speakers are not traditional journalists?
This article will address the censorship that arises when courts define who counts as a media defendant in defamation cases. Originally, when the law of defamation was first constitutionalized, courts started to use the category of media defendant to provide additional privileges to mass-media actors, in order to support democratic actions in the public sphere. Nowadays, however, the category of media defendant is fast becoming a vehicle for censorship of social-media publishers, because the law is failing to keep up with the innovations in communications technology that ushered in the social-media era.
As a general principle, the First Amendment guarantees the freedom of speech to all speakers, without regard to a speaker’s status as a member of the traditional press or the general public. Yet in many jurisdictions in the United States, the courts are creating and maintaining a hierarchy of speakers, based on whether a defendant in a defamation case is a member of the institutional media or merely a member of the general public. Originally the idea was to give a preference to media defendants because of their role as representatives of the public, gathering and disseminating news. Yet this distinction also means that there is a hierarchy of speakers. If a speaker is found to be a media defendant, the courts provide additional First Amendment protections, but if found to be a nonmedia defendant, the speaker faces a higher likelihood of liability, depending on the state where the case is filed.1
The hierarchy of speakers—essentially two classes, the media and the nonmedia—does not take into account the realities of the social-media era. The hierarchy is only being pursued in a minority of US jurisdictions. The eleven states that discriminate against nonmedia speakers are Delaware, Idaho, Iowa, Kansas, Kentucky, Minnesota, Mississippi, New Jersey, Oregon, Texas, and Wisconsin. Yet the First Amendment law regarding the media/nonmedia distinction remains unclear in another thirteen states. This means that in twenty-four states, or about half of the US, speakers can experience government censorship as a matter of law, based on their status as members of the public rather than as legacy-media actors (e.g., newspaper journalists or TV stations). The Appendix, below, summarizes the case law by jurisdiction on the status of media/nonmedia defendants in libel lawsuits.
For defamation lawsuits filed in these twenty-four states, there is an existing First Amendment crisis, likely to come to a head in the social-media era, because the liberty of speech is being applied unevenly across the fabric of US jurisdictions. Some speakers, who are clearly acting in the public sphere via social media platforms or other technologies, are being afforded a lower standard of freedom because they are not members of the traditional press.
This is a problematic “censorship by law,” because, in the social-media era, members of the general public are able to publish to mass audiences and contribute to democratic action in the mediated public sphere. The distinction between media and nonmedia defendants is obsolete in the social-media era. Ordinary people now have the ability to contribute to debates in the mediated public sphere via social media, even if they are not members of the legacy media. Yet courts continue to assert a distinction regarding who counts as a media defendant. This keeps the door open for the censorship of speakers, based on their status as social-media speakers, rather than legacy media or traditional journalists. This censorship by law is likely to harm public discourse, because the nonmedia defendant cases fail to keep pace with technological advances.
Communications technologies have accelerated over the last forty years, from the invention of email in 1972,2 to the use of electronic bulletin boards in the early 1980s,3 to the development of the public Internet in the 1990s,4 and the explosion of social-media platforms in the twenty-first century. The last ten years saw remarkable growth in social media, with use of social-media platforms jumping tenfold between 2005 and 2015 for US adults.5 A historic threshold was crossed in 2016 when for the first time a majority of US adults—62 percent of US adults—obtained news via social media.6 As of January 2017, nearly 70 percent of US adults use social media regularly, with that number hitting nearly 90 percent in the 18-to-29-year-old age bracket.7
The regulation of social media has been so uneven, however, that experts are asking if social media will splinter into a heavily patrolled and regulated “safe space,” entirely separate from a free-for-all zone.8 The predictions tend to suggest that the fractured—partially government censored, and partially unregulated—online landscape will have chilling effects on the free exchange of ideas in the public sphere.9 Of course, the regulation or management of social media is not entirely in the hands of government actors, as seen in controversies being handled by the social-media leader, Facebook,10 over fake news stories intentionally posted on its site during the 2016 presidential election cycle.11
Communications technologies change quickly, but the law changes slowly by design. Law is designed to change slowly to maintain social stability, especially in the area of constitutional libel law.12 When and how can a publisher be sued for injury to another’s reputation? The judicial answers to this question in recent libel law cases have not kept up with how publishing actually occurs on the Internet and via social media.
In the legacy-media era of the 1990s and earlier, it was relatively clear who counted as a media defendant: either a defendant company owned a city newspaper or it owned a broadcast television station, making the defendant clearly a media defendant. In contrast, in the social-media era, there are a wide variety of media outlets that can be hit with a libel lawsuit, including online news sites, podcasts, video-sharing websites, self-published e-books, blogs, and micro-blogging sites, such as Twitter. The law in some jurisdictions of the US has not kept pace with the realities of social-media publishing. Individual bloggers, YouTubers, and Tweet publishers now are being sued for libel occurring in the public sphere, but the courts are still struggling to determine who counts as a media defendant. The media defendant classification was supposed to provide advantages to media defendants, but now is being used to disadvantage “nonmedia defendants” who are nevertheless speaking in the public sphere, not in purely private settings.
The upshot is that some US jurisdictions are using antiquated understandings of news production and publishing and, in defamation cases, are creating an unconstitutional classification of speakers. Social-media speakers in this schema may or may not be afforded full First Amendment protection for their speech, even though the speech takes place in the public, not private, sphere. That is to say, these jurisdictions are using definitions of who counts as a media defendant based on social constructs from before the social-media era, to limit public discourse reaching mass audiences, often in the same way that mass-media producers such as newspapers and broadcast stations did in the past.
The judicial outcomes tend to censor a group of speakers, by disadvantaging them as against speakers who act more like traditional media from the legacy-media era. This is because the older theories about who counts as the media, and who is not the media, fail to consider the dynamics of social-media publishing. But this censorship by law could well be used to target and restrict speech by some speakers, for political or other reasons, based on the content of speech, under the guise of protecting the media more than supposedly nonmedia or private speech.
The censorship of defendants deemed to be nonmedia is fast becoming a problem of “law on the books, law in action.” This is a jurisprudential concept from the Legal Realism school of thought.13 “Law on the books, law in action” is the idea that the rules written in law books are, more often than not, insufficient to resolve social problems.14 The written rule of law alone cannot determine what would be the just or right outcome, because the variety of all possible situations cannot be anticipated by law.
In other words, judges would do well to interpret the law on the books by considering the real-world consequences of “law in action.” The courts that apply the written law alone, without considering the social world, may make inadequate decisions. Deciding cases based on the formal application of rules, without regard for social consequences, is called mechanical jurisprudence, i.e., interpretations that consider only law on the books and not law in action.15
More critically and specifically, the uncertainty over who counts as a media defendant in libel law cases in the social-media era has been used to determine whose First Amendment rights are protected and whose are not. When the law can be interpreted “on the books” against certain speakers based on their status (in this case, determined by whether they own a legacy-media company), the effect of the “law in action” is political censorship. Publishers in the social-media era are likely to be censored, via outdated libel laws and conceptions about who has the status of media defendant, based on the legacy-media era. These outdated laws—primarily court opinions from the 1990s or earlier—are being enforced in the social-media era, without regard to the real-world dynamics of twenty-first-century publishing and journalism.
The thesis of this article is that, in social media and Internet publishing, the use of an outdated definition of the media defendant by judges leaves open the door for a new form of censorship by law. Interestingly, the definition of a media defendant originally arose in court opinions in which judges were interpreting in order to give additional advantages to mass-media publishers, on the theory that mass-media publishers are purportedly acting in the public interest.16 Now, however, there are so many forms of mass-media publishing that the distinction between mass-media and self-publishing, or private publishing, simply doesn’t exist. In the social-media era, newspapers and TV stations are no longer the only mass-media actors.
With the advent of new communication technologies and platforms, publishing is not limited to the traditional, gatekeeper companies, who produce and distribute content on the basis of one-to-many publishing (for example, one TV station broadcasting to a mass audience). Now, individuals and small groups are able to publish content to mass audiences on the basis of many-to-many publishing (for example, social media users posting and interacting with other social media users).
Yet, in some jurisdictions, the courts are still pondering whether blogging and tweeting should be considered media activities, for the purpose of granting First Amendment privileges to media defendants in libel cases—or withholding those privileges from nonmedia defendants, on the assumption that nonmedia defendants are necessarily acting in the private sphere. The laws on the books that still distinguish between media defendants and nonmedia defendants are causing an uneven and unconstitutional hierarchy between speakers who are all acting in the public sphere. This new type of censorship by law may have arisen unintentionally, due to lags in the law as it moves more slowly than technology.
Nevertheless, this censorship by law gives some speakers more privileges and liberties than others. The hierarchy of speakers created in this area of defamation law is based on the idea that speakers who are not affiliated with the traditional media must not be contributing to the public conversation (i.e., are private speakers). The social dynamics of the gatekeeper and legacy media cleanly divided speakers into mass-media or public speakers, and nonmedia or private speakers. But these lines are blurred in the social-media era.
The takeaway message is that, in an era transformed by social media, outdated defamation laws are fast becoming a dangerous form of censorship by law. Who will be silenced as a result?
The jurisprudence that regulates who counts as a media defendant in the social-media era does not give breathing room to publishers. Who is not the media in the era of social media? Distinctions in the case law between who counts as a media defendant, and who does not count, could easily be used to reach political results in lawsuits that should be decided on their legal merits.
Interestingly, the media/nonmedia distinction has been rejected in comments made at the Supreme Court level, but it is still accepted in many of the lower courts.17 The distinction causes an uneven hierarchy between speakers, some with more privileges and liberties than others, which is contrary to First Amendment guarantees. Although the interpretation of defamation law that creates unconstitutional classifications appears to be unintentional, the censorship problems it creates do not bode well for the future of public speaking via social media.
| Jurisdiction | Nonmedia Distinction | Case and Year |
|---|---|---|
| U.S. Supreme Court | Not directly addressed in majority ruling | Dun & Bradstreet v. Greenmoss Builders (dissent) (1985); Philadelphia Newspapers v. Hepps (1986); Milkovich v. Lorain Journal Co. (dissent) (1990) |
| 1st Circuit Court of Appeals | No | Piccone v. Bartels (2014) |
| 2nd Circuit Court of Appeals | No | Flamm v. Am. Association of University Women (2000); Konikoff v. Prudential Ins. Co. of America (2000) |
| 3rd Circuit Court of Appeals | No | Avins v. White (1980); Medico v. Time (1981); U.S. Healthcare v. Blue Cross of Greater Phila. (1990) |
| 4th Circuit Court of Appeals | No | Snyder v. Phelps (2009); Mayfield v. National Assoc. for Stock Car Auto Racing (2012) |
| 5th Circuit Court of Appeals | Unclear | Snead v. Redland Aggregates (1993) |
| 6th Circuit Court of Appeals | Unclear | Orr v. Argus-Press Co. (1978) (no distinction in dictum) |
| 7th Circuit Court of Appeals | No | Underwager v. Salter (1994) |
| 8th Circuit Court of Appeals | No | In re IBP Confidential Bus. Documents Litig. (1986); Deupree v. Iliff (1988) |
| 9th Circuit Court of Appeals | No | Obsidian Finance Group, LLC v. Cox (2014) |
| 10th Circuit Court of Appeals | No | Garcia v. Bd. of Edu. of Socorro Consol. Sch. Dist. (1985); Jefferson County School District v. Moody’s Investor Services (1999) |
| 11th Circuit Court of Appeals | Unclear | Straw v. Chase Revel (1987); Log Creek, LLC v. Kessler (N.D. Fla. 2010); Intihar v. Citizens Information Associates, LLC (M.D. Fla. 2014) |
| D.C. Circuit Court of Appeals | Unclear | Davis v. Schuchat (1975); Pearce v. E.F. Hutton Group (D.D.C. 1987); White v. Fraternal Order of Police (1990); Vereen v. Clayborne (1993); Novecon v. Bulgarian-American Enterprise Fund (D.D.C. 1997) |
| Alabama | No | Beneficial Mgmt. Corp. v. Evans (1982) |
| Alaska | No | Schneider v. Pay ’N Save Corp. (1986); Rybachek v. Sutton (1988) |
| Arizona | No | Nelson v. Cail (1978); Sewell v. Brookbank (1978); Rosales v. City of Eloy (1979) |
| Arkansas | No | United Insur. Co. of America v. Murphy (1998); Gibson v. Regions Fin. Corp. (2008) |
| California | No | Miller v. Nestande (1987) |
| Colorado | No | Rowe v. Metz (1978); Sky Fun 1 v. Schuttloffel (2001) |
| Connecticut | Unclear | No reported cases (as of 2014) |
| Delaware | Yes | Kanaga v. Gannett Co. (1996) |
| District of Columbia | No | Moss v. Stockyard (1990); Ayala v. Washington (1996); Bannum v. Citizens for a Safe Ward Five (2005) |
| Florida | No | Nodar v. Galbreath (1984); Perry v. Cosgrove (1985) |
| Georgia | No | Triangle Publications v. Chumley (1984); Diamond v. American Family Corp. (1988) |
| Hawaii | No | Rodriguez v. Nishiki (1982); Mehau v. Gannett Pacific Corp. (1983) |
| Idaho | Yes | Student Loan Fund of Idaho v. Duerner (1997); Steele v. Spokesman-Review (2002); Clark v. Spokesman-Review (2007) |
| Illinois | No | Millsaps v. Bankers Life Co. (1976); Colson v. Stieg (1982); Gravatt v. Columbia Univ. (1986); Dubinsky v. United Airlines Master Exec. Council (1999); Missner v. Clifford (2009); Huon v. Breaking Media (2014); Doctor’s Data v. Barrett (2016) |
| Indiana | No | Patten v. Smith (1977); Near E. Side Cmty. Org. v. Hair (1990); Conwell v. Beatty (1996) |
| Iowa | Yes | Anderson v. Low Rent Housing Comm. (1981) (no distinction); Vinson v. Linn-Mar Cmty. Sch. Dist. (1984) (distinction); Bierman v. Weier, Author Solutions (2013), reversed by Bierman v. Weier, Author Solutions (9th Cir. 2014). |
| Kansas | Yes/No | Hanrahan v. Horn (1983) (distinction); Knudsen v. Kansas Gas and Electric Co. (1991) (no distinction) |
| Kentucky | Yes | Columbia Sussex Corp. v. Hay (1981); Hill v. Petrotech Resources Corp. (2010) |
| Louisiana | No | Bussie v. Larson (1980); Kennedy v. Sheriff of East Baton Rouge Parish (2006) |
| Maine | No | Michaud v. Inhabitants of Town of Livermore Falls (1978) |
| Maryland | No | Jacron Sales Co. v. Sindorf (1976); Seley-Radtke v. Hosmane (2016); Hanlon v. Davis (1988) |
| Massachusetts | No | McMann v. Doe (2006) |
| Michigan | Unclear | Hodgkins Kennels v. Durbin (1988) (distinction in dictum); Rouch v. Enquirer & News of Battle Creek, Michigan (1992) (unclear) |
| Minnesota | Yes | Jadwin v. Minneapolis Star & Tribune Co. (1985); McDevitt v. Tilson (1990); Britton v. Koep (1991); Stokes v. CBS (1998); Bahr v. Boise Cascade Corp. (2009); Nexus v. Swift (2010) |
| Mississippi | Yes | Sartain v. White (1991); Eselin-Bullock & Assoc. Ins. Agency v. National Gen. Ins. Co. (1992) |
| Missouri | No | Ramacciotti v. Zinn (1977); Snodgrass v. Headco Indus. (1982); Henry v. Halliburton (1985) |
| Montana | Unclear | No reported cases (as of 2014) |
| Nebraska | Unclear | No reported cases (as of 2014) |
| Nevada | Unclear | No reported cases on media/nonmedia defendants as of 2014, but media defendants held to negligence standard in private plaintiff/private concern cases: Schwartz v. Estate of Greenspun (1994) |
| New Hampshire | Unclear | No reported cases (as of 2014) |
| New Jersey | Yes | Dairy Stores v. Sentinel Publishing Co. (1986); Bainhaur v. Manoukian (1987); Turf Lawnmower Repair v. Bergen Record Corp. (1994); DeAngelis v. Hill (2004); Senna v. Florimont (2008); Berkery v. Estate of Stuart (2010); W.J.A. v. D.A. (2012); Roberts & Abrams v. Mintz (2016) |
| New Mexico | Unclear | No reported cases (as of 2014) |
| New York | Unclear | Don King Prod. v. Douglas (1990); but see Banco Nacional de México, S.A. v. Menéndez-Rodriguez, Al Giordano, and Narco News Bulletin (2001); and compare Rupert v. Sellers (1978) (strict liability for nonmedia defendant) and Gaeta v. New York News (1983) (negligence standard for media defendant) |
| North Carolina | No | Gaunt v. Pittaway (1999) |
| North Dakota | Unclear | No reported cases (as of 2014) |
| Ohio | No | Wampler v. Higgins (2001); Davis v. Jacobs (1998) |
| Oklahoma | No | Hennessee v. Mathis (1987); but see Bird Construction Co. v. Oklahoma City Housing Authority (2004) |
| Oregon | Yes | Wheeler v. Green (1979); Adams v. State Farm Mutual Automobile Insurance Co. (1978); Obsidian Finance Group, LLC v. Cox (2011), affirmed in part, reversed in part, Obsidian Finance Group, LLC v. Cox (2014) |
| Pennsylvania | Unclear | No reported cases (as of 2014) |
| Rhode Island | No | DeCarvalho v. daSilva (1980) |
| South Carolina | Unclear | Holtzscheiter v. Thomson Newspapers (1991) (unresolved); Erickson v. Jones Street Publishers, LLC (2006) |
| South Dakota | Unclear | No reported cases (as of 2014) |
| Tennessee | No | Selby v. Ilabaca (1996) |
| Texas | Yes | Mitre v. Brooks Fashion Stores (1992); Hancock v. Variyam (2013); Young v. Parent (2017) |
| Utah | No | Cox v. Hatch (1988) |
| Vermont | No | Ryan v. Herald Association (1989) |
| Virginia | No | Gazette v. Harris (1985); Great Coastal Express v. Ellington (1985); but see Kincaid v. Anderson (2016) |
| Washington | No | Caruso v. Local 690, International Bhd. of Teamsters (1983); Bender v. City of Seattle (1983); LaMon v. Butler and Daily World (1989) |
| West Virginia | No | Long v. Egnor (1985) |
| Wisconsin | Yes | Denny v. Mertz (1982) |
| Wyoming | Unclear | No reported cases (as of 2014) |