By Rod Smolla… 

Is It the Medium or the Message?

“The medium is the message,” wrote the American philosopher Marshall McLuhan.[1]   From the inception of the Internet, American law has been vexed by whether to follow McLuhan’s dictum, or instead insist on its opposite. In fashioning the constitutional, common-law, and statutory doctrines that govern liability for words posted on the Internet, particularly on social media, what should matter, the medium, or the message?

Consider the Supreme Court’s most recent pronouncements on the First Amendment doctrines applicable to social media, in Packingham v. North Carolina.[2] The Court in Packingham held unconstitutional a North Carolina law enacted in 2008, making it a felony for a registered sex offender to gain access to a number of websites, including social media platforms such as Facebook and Twitter. Justice Kennedy’s opinion for the Court began with a passage likening the Internet generally, including social media, to the physical spaces traditional treated as public forums in First Amendment public forum law:

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. . . . Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.

While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace – the “vast democratic forums of the Internet” in general, . . . and social media in particular. Seven in ten American adults use at least one Internet social networking service. . . . One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. According to sources cited to the Court in this case, Facebook has 1.79 billion active users. . . . This is about three times the population of North America.

Yet at the same time, the Court expressed caution. “While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions,” the Court stated, “we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.” Hedging its bets, the Court stated: “The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.”

Packingham signals that the Supreme Court’s current working hypothesis is that free speech issues arising in virtual space should be governed as closely as possible by the same doctrines that would apply in physical space. The Court thus likened the vast democratic forums of the Internet to the vast democratic forums of our public physical spaces, such as streets, sidewalks, parks, and plazas, those “traditional public forums” historically treated as reserved for freedom of expression.

General Propositions Do Not Decide Concrete Cases

“General propositions do not decide concrete cases,” Justice Oliver Wendell Holmes admonished.[3] The general contours of the First Amendment rules governing public forum law have long been established. The content-based regulation of speech in a public forum is presumptively invalid.[4] Governments are permitted, however, to establish content-neutral time, place, or manner regulations, provided they are narrowly tailored to serve a substantial governmental interest and do not limit alternative avenues of expression.[5]

Even in our physical spaces, however, the rules of engagement, while well known at a high level of generality, can be excruciatingly difficult to apply in specific cases. It is no easy matter for even the most thoughtful law enforcement officials and political leaders to apply them as a crisis suddenly swells and escalates. The First Amendment playbook could not answer every question as racial supremacists descended in large numbers on the tight confines of downtown Charlottesville in August 2017, pressing toward the Robert E. Lee monument as counter-protesters gathered in swelling force to confront them, culminating in the tragic death of Heather Heyer.

Fake News, Falsity, and Social Media

The Internet and social media have made our public discourse more robust than ever. Everyone with a connection has a voice. No longer are mainstream media outlets the gatekeepers or the setters of agendas. This is an epoch of democratization, few barriers to entry, virtually universal access, and (for those who choose it), anonymity.

Yet this explosion of communication and discourse has a dark side. The quality of public discourse may not increase with the quantity of public discourse. There may be less thoughtfulness, less reflection, less attention to factual accuracy. There may be a channeling tendency, through which like-minded people communicate with like-minded people, with less exposure or authentic dialogue across lines of affinity. At the core, the distinction between truth and falsity is sorely stressed.

The elusiveness of truth in the modern American digital marketplace may be linked to the murkiest secrets of our politics. A recent analysis by the New York Times of the Facebook pages linked to what the Times described as a “shadowy Russian company that carried out a propaganda campaign for the Kremlin” revealed that the Russians had harvested their content from American home-grown anger fake news, stating that an “examination of “hundreds of those posts shows that one of the most powerful weapons that Russian agents used to reshape American politics was the anger, passion and misinformation that real Americans were broadcasting across social media platforms.”[6] As Jack Nicholson shouted in “A Few Good Men”: “You want the truth? You can’t handle the truth!”

Civilization’s grasp on truth may be slipping in part because of the sheer hydraulic pressures imposed by the very brevity of many social media posts, particularly on Twitter. The truism that Twitter may be used to state virulent opinions or stake out major initiatives of public policy, however, does not negate the truth that Twitter may also be used to bully, threaten, incite, or defame. In the haunting words of Albert Einstein: “It has become appallingly obvious that our technology has exceeded our humanity.”[7]

That some actors in society may be losing a grip on truth, however, does not mean that courts of law should lose their grip. Our fundamental notions of due process and the rule of law presuppose that there is truth and there is falsehood, and that the legal tribunals of a decent society committed to ordered liberty have the competency and duty to distinguish between them.

Social Media, Free Speech Doctrines, and Tort Remedies

Just as society struggles to strike the appropriate balance between protection of free speech and protection of life, human dignity, and property in physical spaces, striking the balance remains a work in progress in digital space.

Consider, for example, the matrix of laws governing tort liability. Defamation is an ancient tort. Invasion of privacy is of newer origins, but has also been part of our legal fabric for nearly a century. There are multiple privacy torts, not all recognized in all jurisdictions: false light, publication of private facts, intrusion, and appropriation/right of publicity. The stress points in defamation and privacy litigation are familiar. They include such doctrines as defamatory meaning, the distinction between fact and opinion, burdens of proving falsity, the distinction between public and private figures, fault standards, newsworthiness defenses, statutes of limitations, the single publication rule, liability for republication, the fair reports privilege, neutral reportage, the immunities provided by §230 of the Communications Decency Act, anti-SLAPP laws, and unmasking rules.

First Amendment doctrines exert a powerful influence on these legal doctrines. As with public forum law, the broad First Amendment propositions have been relatively stable for some time. In defamation, the “actual malice” standard provides strong protection for expression targeting pubic officials and public figures,[8] plaintiffs have the burden of proving falsity if the speech is on a matter of public concern,[9] and only false statements of fact, not expressions of opinion, are actionable.[10]

While these doctrines are well known and stable, their application in specific cases is often hotly contested and outcomes not always easy to predict. In many cases, determining whether a plaintiff is a public figure or a private figure is extremely difficult. Even when the actual malice standard applies, there are many cases in which its existence is heavily contested, and cases in which judges and juries will find that it was present. Indeed, in another case arising from Charlottesville, a jury awarded University of Virginia Dean Nicole Eramo $3 million in damages in a libel suit arising from Rolling Stone’s publication of a gang-rape story that went viral on the Internet, yet turned out to be fabricated.[11]

The difficult trade-offs posed by the application of these principles to allegations of defamation arising from social media is illustrated by ongoing litigation in New York, in Jacobus v. Trump.[12] Cheryl Jacobus, a political strategist and news commentator, brought a libel suit against Donald Trump, the Donald Trump for President Campaign, and Corey Lewandowski, Mr. Trump’s campaign manager, arising from attacks on Jacobus made by Mr. Lewandowski and Mr. Trump during Mr. Trump’s run for the Republican nomination, including two Twitter posts by Mr. Trump. The pivotal question was whether Mr. Trump’s tweets should be deemed statements of defamatory statements of fact, or mere expressions of opinion. In reaching the judgment that the statements should be classified as opinion, the trial court emphasized “Trump’s regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable.” The case (now on appeal) tests the contours of a “Twitter Defense,” and the proposition that the distinctions between truth and falsity, or fact and opinion, may have become so degraded that courts are no longer competent to distinguish among them.

The Counter-Intuitive Value Limits in Advancing Free Speech

It may seem counter-intuitive that an essay offered in homage to Free Speech Week would contain these reminders of the importance of stable legal doctrines separating that speech which is protected from that which is not, whether in physical or virtual space.

The final paragraph of Justice Holmes’s famous dissenting opinion in Abrams v. United States[13] remains to this day the single most poetic and resonant defense of freedom of speech in the American constitutional tradition. Yet Holmes was not indifferent to truth. The entire premise of his defense of freedom of speech was the belief that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Nor was Holmes an absolutist. His “clear and present danger test” as restated and intensified in Abrams was a legal doctrine proffered to draw limits. The limits were highly protective of speech – he argued that we must tolerate even “the expression of opinions that we loathe and believe to be fraught with death” – but the limits still existed.

Freedom of speech, if treated as an absolute, would never endure in a society built on concepts of ordered liberty. Absolute protection for all speech would render our discourse governed by the law of the jungle instead of the law of the land. Lines distinguishing between expression and incitement to violence, or between defamatory falsehoods and derisive opinions, are central to the rule of law, and in turn central to the preservation of freedom of speech. The thoughtful drawing of those lines, of course, is an ongoing challenge in our democratic constitutional experiment – in Holmes’s words again: “as all life is an experiment.”

Rodney Smolla is Dean of the Widener University Delaware Law School in Wilmington, Del.

[1] See Marshall McLuhan, Understanding Media: The Extensions of Man, 8-13 (1964).

[2] 137 S. Ct. 1730 (2017).

[3] Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).

[4] See Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015).

[5] See Ward v. Rock Against Racism, 491 U.S. 761, 789 (1989).

[6] Nicholas Confessore and Daisuke Wakabayashi, “How Russia Harvested American Rage to Reshape U.S. Politics,” New York Times, Oct. 9, 2017, at https://www.nytimes.com/2017/10/09/technology/russia-election-facebook-ads-rage.html?emc=edit_th_20171010&nl=todaysheadlines&nlid=45567585.

[7] Wikiquotes, attributing the source to Nina L. Diamond, Voices of Truth: Conversations with Scientists, Thinkers, and Healers (2000), p. 429, at https://en.wikiquote.org/wiki/Talk:Albert_Einstein.

[8] New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

[9] Philadelphia Newspapers, Inc. v. Hepps, 474 U.S. 767 (1986).

[10] Hustler Magazine v. Falwell, 485 U.S. 46 (1988); Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695 (1990).

[11] Eramo v. Rolling Stone, LLC, 209 F. Supp. 3d 862 (W.D. Va. 2016); T. Rees Shapiro, “Jury Awards $3 million in damages to U.VA. dean for Rolling Stone defamation,” Washington Post, Nov. 7, 2016, at https://www.washingtonpost.com/local/education/jury-to-deliberate-damages-to-u-va-dean-in-rolling-stone-defamation-lawsuit/2016/11/07/e2aa2eb0-a506-11e6-ba59-a7d93165c6d4_story.html?utm_term=.8a5f496a36f9.

[12] 55 Misc. 3d 470, 51 N.Y.S.3d 330 (N.Y. Sup. Ct. 2017).

[13] 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).