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Regulating the Cyber-Journalist

Nicholas Johnson(1)

A paper presented to

The Journalist in Cyberspace

A Warsaw Journalism Center International Conference

Palace of Culture Warsaw, Poland

October 11-12, 1997

Co-organized and co-sponsored by

the Goethe Institute, the Polish National Broadcast Council, the German Embassy, and the American Embassy


Contents

Introduction: The Uniqueness of Polish Journalism

Copyright Notice

Convergence and Cyberspace

The First Amendment: The Presumption of No Regulation

What is Journalism?

Restrictions Applicable to All -- Including Journalists

Journalists' Special Privileges

Journalism in Cyberspace: The Similarities

Journalism in Cyberspace: The Differences

Cyberspace Regulation: Some Current U.S. Issues

Conclusion

Endnotes


Introduction: The Uniqueness of Polish Journalism

Are there aspects of journalism and the new technologies -- the Internet in particular -- that require governmental "regulation"?

The shortest answer, and one preferred by many, would be a simple "No."

But law professors do not give short and simple answers, and besides I've been told to take 20 minutes for this presentation. So permit me to elaborate a bit.

To clarify my purpose at the outset, these remarks are, necessarily, drawn from American, rather than Polish, experience.

All Americans have at least some knowledge of Polish history, the struggles you have endured over the past 1000 years, your cultural achievements that have enriched us all, and the substantial contributions great Polish leaders have provided to Poland, America and the world -- among others currently, the Pope for the world's Roman Catholics, and, until his retirement last week, the Chairman of the Joint Chiefs of Staff of the USA's military forces.

The 1990s have been only the latest period of growth and achievement for your country.

So a major reason for my being here is my desire to learn from you: your system of mass media, how you provide for independent journalism, and the ways in which the government relates to media.

My reluctance to make recommendations comes both from my relative lack of understanding of, and because of the respect I have for, the uniqueness that is Polish journalism.

I will simply describe some of my thoughts and experiences with U.S. government regulation of the media, and some of the issues we are currently confronting in America regarding the Internet. If you find any of it useful you are free to apply it in your own unique way. If you do not find it applicable, hopefully you will at least find it interesting.

If you would like to pursue any of these issues at greater length, I will be around for the entire conference. After that I am available to you on the Internet -- both by way of e-mail [1035393@mcimail.com], and through the resources provided on my Web page [http://soli.inav.net/~njohnson].



Convergence and Cyberspace

"Convergence" is a current buzz-word in discussions of the current, and future, state of media. So there is nothing original in my mentioning it. But a brief word on the subject may be necessary to put these remarks in context.

When I was serving as a Commissioner of the U.S. Federal Communications Commission, some twenty-five years ago, the categories were clear.

Today, seemingly everything is converging.

Thus, we are today living through a confusing convergence of technologies, services, industries, and regulation that may make our emphasis on "journalism in cyberspace" a somewhat narrow, arbitrary and unrealistic focus.

The only two things we probably know for sure are that (1) something like what we today think of as journalism is going to continue to provide some of the input into tomorrow's "Infocosm" (if I may borrow Andersen Consulting's word). And (2) that Infocosm will be filled, and drawn upon, with a seamless web of technologies, services, companies and individuals.

William Gibson, who gave us the word "cyberspace" in the 1984 book Neuromancer, was using it to describe what we would, today, more likely refer to as "virtual reality" -- a realistic, electronic, artificial "environment" in three dimensions, stimulating all the senses.

Today "cyberspace" is used in a variety of ways, but often interchangeably with "the Internet" or "Web."(2)

So however artificial may be a focus on cyberspace in a converging world, and however far our current meaning has drifted from that of Mr. Gibson, that will be my limited focus, and definition. Otherwise, the topic expands to impossible lengths -- not unlike the famous professorial essay question: "Describe the universe and give two examples."


The First Amendment: The Presumption of No Regulation

As you probably know, the original constitutions for Poland and USA came into existence about the same time -- 1789 and 1791.

Our Constitution has been amended many times since, but the First Amendment is, in some ways, the best known and the most important of those amendments.

It provides, "Congress shall make no law . . . abridging the freedom of speech or of the press . . .."

Although this language is fairly clear, it is also quite general. Its precise meaning and application have been spelled out by the decisions reached by U.S. courts over the past 200 years.

Essential to an understanding of how that works is awareness of the independence of U.S. federal judges. Appointed by the President and approved by the Senate, once in office they are there for life -- with no allegiance to political parties or Executive or Legislative Branch officials. [For a fuller explanation of the workings of the First Amendment you might wish to look at another paper, available in full text with this link: "An Autonomous Media." If you are reading this in hard copy, the URL is: http://www.uiowa.edu/~cyberlaw/lem/njautonm.html]


What is "Journalism"?

At the outset, we are confronted with defining "journalism," and "the media."

In rejecting the notion that the First Amendment's reference to "or of the press" confers any rights on the mass media beyond those of "freedom of speech," one Supreme Court justice commented on the difficulty of defining "the press." If the definition is limited to the likes of the New York Times and CNN, it thereby excludes the only "press" known to those who drafted the First Amendment: the small circulation publications of individual owner-editors. On the other hand, if such publications are included within the definition, it includes so much as to be virtually indistinguishable from the "speech" of private citizens that may include letters-to-the-editor, or multi-copy handbills.

The Internet only exacerbates this problem. Take my own Web page as an example. I post the full text of most of my writings and interviews. Some of what I post are opinion columns written for major newspapers. But I may also post material -- such as the text for these remarks -- which has never been published in a conventional sense elsewhere. Is the former "journalism" and the latter not?

There is, of course, a problem for the Web surfer, the reader -- or the journalist using the Internet for research. In some ways it's not different from the problems when evaluating print. How reliable is this source, this writer? Are they writing from an ideological, propaganda perspective? How thorough is their research? The mere fact that something is communicated in print, on paper, does not make it true or useful. But print, whether books, magazines or newspapers, usually involves at least some "gate-keeping" function by somebody. On the Internet, anybody can become his or her own reporter, editor and publisher.

We can say that nothing on the Internet is journalism, or that all of it is, or that some is and some isn't. It probably makes more sense to look at it on a case-by-case basis, depending on the purpose.


Restrictions Applicable to All -- Including Journalists

To say that we do not license journalists, and that we have few, if any, laws or regulations applicable to journalists, does not mean that they are left outside the law.

For the most part, laws generally applicable to all citizens in the USA are also applicable to journalists.

For example, although the Congress has provided special tax exempt status for religious organizations, it has provided none for the media.

In fact, most of the "regulation of journalism"in the USA is of just this kind -- regulation that applies to every business and citizen, everything from antitrust to zoning.


Journalists' Special Privileges

Just as there are few, if any, regulations of journalists, neither are there, for the most part, special privileges.

Indeed, many journalists oppose the idea of special privilege, on the grounds that with special privileges from government may come special obligations or restrictions. Sometimes called "The Fourth Estate," representatives of the media like to rely on the First Amendment as evidence of their total independence from government.

Notwithstanding these protestations, however, there is the legal question of whether the Constitution's reference to "or of the press" adds anything to the "freedom of speech" possessed by the media equally with all citizens. There is some basis for arguing that it does.

For the most part, however, journalists have no rights beyond those of all citizens to, for example, get access to government documents under the "Freedom of Information Act," tour prisons and other government buildings, attend trials or other official, public meetings.


Journalism in Cyberspace: The Similarities

If journalists have neither special regulations nor privileges, and we even have difficulty defining "journalism," our inquiry into the regulation of "journalism in cyberspace" becomes, simply, an inquiry into government regulation of the Internet/Web in general.

There are, of course, laws and regulations resulting from the uniqueness that is cyberspace -- the Internet, the Web -- and we will address those shortly. But, once again, for the most part the laws applicable in cyberspace are the same laws applicable everywhere else.

So, for the most part, to the extent there are laws governing journalism in any medium they will also be applicable to journalism in cyberspace.


Journalism in Cyberspace: The Differences

One of the most obvious differences between cyberspace and print involves geography.

We have legal systems that have operated on a centuries-old unstated assumption that they apply within arbitrary (and, as you well know, changing) political boundaries on Planet Earth -- nations, their subdivisions, cities.

Judges and lawyers don't talk about geography very much, but it is the foundation on which most law and regulation are based.

Cyberspace, by definition, is not geographically bound. Geography is simply irrelevant. Someone whose computer is connected to the Internet, the Web, is attached to a global network of computers. The net effect (if you'll pardon the pun) is that they have, thereby, created the equivalent of taking all the files in all the computers on Planet Earth and putting them on the hard drive of their desktop computer. Click on a link and a new screen of material appears -- just as if it was one of their files. The computer on which that new screen of material is stored may be in Poland, Japan, Chile, South Africa, or the United States. The location of that computer, and the countries (or satellites) through which its data travels, are not only irrelevant, they are often unknown to the user.

How does this affect the law, the regulation, of cyberspace?

Cyberspace not only turns geographically-based legal systems upside down, the inherent technology of computers and their networks puts enormous strains on something like copyright law.

As a result, one of today's hot cyberspace law topics is the future of copyright.

The Internet was first settled by wild west cowboys primarily interested in selflessly contributing information -- and downloading information -- as a contribution to the online community. The Information Superhighway was not seen as the road to riches. Now that the major global media conglomerates are becoming players they want to make money from everything they put on the Web -- and change the cooperative spirit of the online community in the process. They are meeting resistance with this clash of cultures. But you may be aware of the meeting in Geneva last December at which 160 countries agreed to many of the global media conglomerates' requests.


Cyberspace Regulation: Some Current U.S. Issues

To the extent we want to focus on anything having to do with the Internet that may involve law, regulation, or standard setting -- rather than just "journalism" -- there are, of course, many topics.

Some of the areas that might be identified would include:

Of course, any journalist, or media outlet, that puts material on the Internet is affected by some of these issues. But the primary persons and businesses affected are:

To the extent the journalist, or media owner, is also in any of these categories, he or she is equally subject to whatever regulations may be applicable.


Conclusion

This is an exciting time, but also a confusing time, for those of us interested in regulation of journalism in cyberspace.

Society generally tends to lag behind the scientists and engineers.

Lawyers and politicians tend to lag behind society. As the old saying goes, "If the people will lead, their leaders will follow."

Law professors are supposed to train future lawyers in a skill called "spotting the issues." It is, of course, a necessary preliminary to coming up with public policy proposals. And such proposals must be discussed over time before a consensus will emerge that can form the basis for legislation -- or other social standards.

At this point in history we are still trying to spot the issues. There are few efforts at new legislation -- and some of those have been found to violate our constitutional protection of free speech. There are relatively few judicial opinions. And many of those represent little more than efforts to pour familiar, decades-old wine into new, electronic bottles.

Eventually, in my view, we will need to do what they sometimes say in Hollywood: "Take it from the top." Start all over. Re-think a legal system for a world without geography, a technology without nationality.

And when we do, if it is to be effective, it seems to me inevitable that it will have to be a global effort.

Perhaps our discussions today can be a start.


Endnotes

1. Nicholas Johnson, a former Commissioner of the U.S. Federal Communications Commission, and author of How to Talk Back to Your Television Set, teaches law at the University of Iowa College of Law in Iowa City, Iowa, USA. E-mail: 1035393@mcimail.com Web page: http://soli.inav.net/~njohnson Postal: Box 1876, Iowa City IA 52244-1876

2. "Cyberspace," for these purposes, includes, of course, a number of distinguishable systems of communication:

3. One case that illustrates the geography problem involved a couple who lived, and kept their computer, in Northern California -- where the material they made available might very well have not been found obscene -- who were convicted on the basis of "contemporary community standards" in Memphis, Tennessee -- where someone downloaded some of their files. [U.S. v. Thomas, 74 F.2d 701 (6th Cir. 1996)]

[19971003]


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