When everyone's a publisher
A grisly murder trial in Southern California has created an unlikely test case for freedom of speech in cyberspace.
The defense attorney in the Ventura County case has subpoenaed a local newspaper's Web site for material related to its coverage, including information about readers who responded to an online poll. Editors and lawyers of the Ventura County Star have refused, citing a state statute designed to protect freedom of the press known as California's "shield law." Many states have enacted such laws to encourage members of the public to speak with the press while "shielding" their identities to protect them from reprisal.
But what would have happened if the site being subpoenaed wasn't run by a newspaper or, for that matter, any traditional media organization? Suppose a local retail store posted a similar poll on its Web site and was contacted by attorneys in the case. Could it then claim protection under the shield law?
What this argument boils down to is the definition of "publisher" on the Internet.
If the medium indeed makes everyone an instant publisher, as the cliché goes, then it stands to reason that all Web site operators are subject to the same First Amendment laws that have governed magazines and newspapers for decades.
Suppose a Web site was opened by Acme Hardware of Valencia, a town not far from where the murder took place, at least by Southern California freeway standards. To increase the site's traffic, Acme starts all kinds of promotional gimmicks, such as games and reader contests. The site's operators decide to create a regular write-in poll featuring the news of the day.
If its poll is similar to the one published on the Ventura County Star's site, could this hardware store claim protection under California's shield law if a lawyer tries to subpoena the responses of its readers?
Attorneys well-versed in cyberlaw say the answer hinges on how a news organization is defined. "In Georgia, the statute protects any information gathered in the news-gathering and the news-dissemination process. It doesn't even have to be confidential information," said attorney Bob Rothman of Arnall Golden & Gregory in Atlanta.
And the definition of "news" can be a fairly liberal one, depending on the statute. Under Colorado's shield law, "news information" is described as "any knowledge, observation, notes, documents, photographs, films, recordings, video tapes, audio tapes, and reports, and the contents and sources thereof, obtained by a newsperson."
It further defines a "newsperson" as "any member of the mass media?engaged to gather, receive, observe, prepare, write, or edit news information for dissemination to the public through the mass media."
Does that include a Webmaster or Webmistress? I'd bet that some court in some state eventually says it does.
As esoteric as this issue may seem, it bears fundamental importance for the right to online privacy for individuals as well as freedom of the press. In the Ventura County case, defense attorney James Farley has requested unpublished email and demographics of those who participated in the survey on the local newspaper's Web site.
He has sought that information to change the venue of the trial for his client, Diana Haun, who is charged with kidnapping and murdering Sherri Dally, the wife of her lover. Farley says the origins of the email will prove that media coverage of the lurid case has tainted any potential jury pools in the region, well beyond the circulation area of the Ventura County Star.
According to the Star's own account of the case, "The online Haun trial coverage includes court stories, several transcripts, audio clips of closing arguments, evidence, photos, a time line, maps, and an interactive voting poll that lets readers play juror."
So far, legal handicappers seem to give Farley the proverbial snowball's chance of succeeding. Analysts say that protecting information from a newspaper's online site appear well within the implied intent of California shield law, even though that statute was drafted well before HTML wrote itself into status as a form of mass communication.
A logical parallel can be drawn between email and information contained in a reporter's notebook that was meant to remain confidential. Moreover, email may be afforded additional protection under the federal Electronic Communications Privacy Act, according to Jim Butler, counsel to the Association of Online Professionals, an industry organization that represents more than 600 Internet service providers.
Nevertheless, the case yields yet another interesting question, one that cyberlibertarians may be loath to address: Does the extension of the shield law to practically all Internet sites dilute its effect?
Many legislators drafted shield laws as a unique protection for a unique role played by the news media at that point in history. Given that the Internet has presented so many other challenges to societal convention, the future of shield laws should be no exception.