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Regulating the Cyber-Journalist
A paper presented to
The Journalist in Cyberspace
Palace of Culture Warsaw, Poland
October 11-12, 1997
Co-organized and co-sponsored
Institute, the Polish National Broadcast Council, the German Embassy,
and the American Embassy
The Uniqueness of Polish Journalism
First Amendment: The Presumption of No Regulation
What is Journalism?
Applicable to All -- Including Journalists
in Cyberspace: The Similarities
in Cyberspace: The Differences
Regulation: Some Current U.S. Issues
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 [firstname.lastname@example.org],
and through the resources provided on my Web page [http://soli.inav.net/~njohnson].
Copyright © 1997 by Nicholas Johnson. All rights are reserved
regarding the reproduction of this work in any media that exists now or
in the future, subject to the following conditions. It is available
for your non-commercial personal use only. (Of course, brief, attributed,
excerpts may be quoted for purposes of reviews or news.) You may read it
on screen, or make one printed copy for yourself -- so long as it contains
this copyright notice and you do not modify the text. You may not run off
additional hard copies regardless of the purpose. And obviously no one
has the right to reissue the text in hard copy, or otherwise sell or profit
from the material. It is provided here as a courtesy. Enjoy. Tell others
who might be interested. Link to this page. But as a matter of law, and
of common courtesy, please do not abuse this opportunity. If you have questions
about these terms, e-mail me, Nicholas Johnson, at email@example.com.
"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.
- The most casual observer would have no difficulty distinguishing
a telephone from a television set -- or a radio transmitter.
- The product of newspaper journalists was manufactured with printers'
ink and newsprint and delivered by trucks.
- There was no confusing the companies, wires, or content brought
to the home by the cable television company and the phone company.
- The FCC's regulatory efforts were carried out by bureaus bearing
the name of the industries in question -- the "Common Carrier Bureau,"
the "Broadcast Bureau."
Today, seemingly everything is converging.
- Global media conglomerates are merging print, broadcast, satellite
and cable television distribution -- along with film and television program
- Newspapers, today, deliver their content not only on newsprint,
but also by fax and e-mail, voice phone access, cable channels -- and the
Web. In fact, that's how I can get current issues of the Warsaw Voice
delivered to my home computer.
- Telephone companies want to get into the cable television business,
cable companies want to get into the phone business, local phone companies
want to provide long distance, and long distance carriers want to provide
local phone and data services -- and the Congress has encouraged all of
it with the Telecommunications Act of 1996.
- Pagers, cell phones and "palm top" computers are coming
to perform similar functions -- and even look alike.
- The same satellite technology that brings television programs, and
is called DirectTV, can also bring high speed Internet access, and is called
- At this point it is not yet clear whether the television set is
going to end up being our primary access to the Web ("WebTV")
as well as to television programs, or whether the Internet is going to
provide our primary access to what we today call "television"
-- along with the Web.
- The FCC now has a "Mass Media Bureau" instead of a "Broadcast
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
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
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."
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
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
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.
- No less distinguished a journalist than Pierre Salinger -- former
press secretary to Presidents Kennedy and Johnson, and an able ABC reporter
-- may have been a victim of these qualities of the Internet. He charged
that a U.S. military missile was, in fact, the cause of the crash of the
commercial airliner in waters off New York City. There was a Web page presenting
precisely this theory. Unfortunately, it was put together by someone who
didn't really think it made any difference whether the report was fact
or fiction -- as long as it made a good story.
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.
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.
- Newspapers and broadcast stations must pay income taxes like any
other business; journalists must pay personal income taxes like every other
- If someone goes on another's property without permission that is
a legal (civil) offense called "trespass." When a journalist
goes on someone's property to take a photograph, or otherwise get a story,
he or she is as subject to a law suit for trespass as anyone else (with
some limited exceptions).
- Even though a reporter is in a hurry to get a story back to the
newspaper or station he or she is subject to the same traffic laws as anyone
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.
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.
- The U.S. Supreme Court has held, for example, that the media should
have some First Amendment protection from the laws of libel -- lest fear
of large damage actions might "chill" the inclination of media
owners fully to report about public matters.
- At least some justices believe that reporters should have a First
Amendment-based privilege to maintain the confidentiality of their sources
-- in circumstances in which a private citizen would have to testify, say,
before a grand jury.
- The Supreme Court refused to permit the Executive Branch's efforts
to prevent the New York Times from publishing classified government documents
about the Viet Nam War that had been stolen from the Pentagon -- under
circumstances in which a private citizen probably would have been jailed.
- Reporters' "press passes" may get them into the White
House, the Congressional "press gallery," private meetings, or
behind police barricades at the scenes of accidents or fires when private
citizens would be barred.
- The Post Office has, for years, provided subsidized, low rates for
the distribution of newspapers and magazines.
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.
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.
- Defamation -- libel and slander -- is little different in cyberspace
from what it is when printed in a newspaper or spray-painted on the side
of a barn.
- To the extent that "obscenity" or "indecency"
are regulated generally, they are also regulated in cyberspace.
- Fraud, or what we call "false and misleading advertising,"
is subject to the same legal standards.
- Privacy rights exist in cyberspace as elsewhere.
- The law of copyright is equally applicable.
- To the extent a professional journalist feels constrained by principles
of journalistic ethics, she should feel equally constrained whether communicating
in cyberspace or in hard copy print.
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.
in Cyberspace: The Differences
One of the most obvious differences between cyberspace and print involves
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.
- "The law" is the federal law of a nation, or the local
law of a state.
- A court has "jurisdiction" over those citizens who live
within its political boundaries.
- A person has a legal "domicile" -- usually where they
- Lawyers and doctors are licensed to practice their profession by
a state -- and can only practice within that state.
- Even in today's "global economy," most businesses are
still identified with the country where their headquarters are located.
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?
- A legal action for defamation involves consideration of the extent
to which the plaintiff's reputation has been harmed in her or his "community."
What is the relevant community for someone defamed on the Internet? The
city or neighborhood where they live -- or work? The entire world of people
with access to the Web? Those with whom the plaintiff communicates through
e-mail, news groups, and Web pages?
- Similarly, "obscenity," as defined by the U.S. Supreme
Court, involves a number of elements. [Miller v. California 413 U.S. 15
(1973)] But a part of the definition refers to "contemporary community
standards." Once again, what is the "community"? Where the
defendant lives? Where the computer is located on which the questionable
material is stored? The "community" of people who regularly download
material from his Web site? Any and every sensitive community around the
world from which one could get access to the Web page?(3)
- In order to have "jurisdiction" over a party, courts usually
require that the party have some contact with the geographical area where
the court sits, for example, a state. The party may live there, or have
a business there, or send sales persons into the area. Is it enough that
the party -- who lives and works outside of the state -- stores material
on a computer within the state? Is it enough that the party's Web page
is available to people living within the state? If so, that would mean
that anyone who posts something on the Web is subject to jurisdiction in
every court on earth.
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.
- When printing presses were huge, expensive industrial items, and
there were few of them, citizens and governments alike knew who was likely
to have illegally copied someone else's material.
- Today, young children often have access to all the equipment necessary
to make illegal copies of musical recordings, TV shows and video tapes,
and computer software. Anything on the Web can be copied -- onto a disk,
or in printed form -- or sent and "published" elsewhere, with
the click of a mouse. None of this changes the law of copyright,
but it certainly changes the capacity for enforcement of that law.
As a result, one of today's hot cyberspace law topics is the future
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.
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:
- the jurisdictional issues mentioned above; also consider gambling
(originating in states or nations where it is legal but, via the Internet,
available in states where it is not)
- restrictions on free speech, mentioned in the context of regulations
of obscenity and indecency -- both laws of general applicability and those
specifically directed at Internet speech
- copyright protection, also mentioned above
- crimes, or threats, involving personal security: pedophiles contacting
children by way of the Internet, sexual harassment or stalking
- economic crimes: theft of passwords or credit card numbers, breaking
into computers ("hacking"), fraudulent schemes of various kinds,
securities fraud (sales of stock over the Internet)
- economic regulation: protection of trademarks and tradenames in
the selection, registration and protection of domain names (e.g.,
"ibm.com"); rights to "link" from one site to another;
"framing" (Can linking be prohibited, or charged for, when one
site provides a link to a second site, but includes the advertising from
the first site?); "spamming" (sending out "electronic junk
mail" to massive lists)
- privacy issues: collecting data from users, both voluntarily contributed
and clandestinely acquired; providing online access to compilations of
data about individuals otherwise hard to acquire; monitoring users' (students;
- the gap between the "information rich and information poor":
programs to network schools and libraries, and provide the necessary hardware
and training for all
- the technology of self defense: screening software that blocks an
individual's (or their children's) access to designated Web sites, or material;
the so-called "V chip" to enable parents to program a TV set
to not receive programs with excessive violence (or sexual material, inappropriate
language, etc.); the "Clipper Chip" (providing citizens the security
of encryption for financial or other private transactions -- but leaving
open a "back door" enabling government agents to break the code)
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:
- those using the Internet to get information -- sometimes called
"netizens" (as in "citizens of the Net")
- the schools and universities that provide a significant proportion
of the computer accounts, hardware, and networks
- Internet service providers -- whether large companies with national
reach or small local companies
- software companies, such as Netscape, and Microsoft (Internet Explorer)
- hardware manufacturers: personal computers, satellite dishes, networks
- phone and cable companies, the carriers that provide the netizens
with access to the Internet service providers
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
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.
- As someone has observed, it took the university professors forty
years just to get the overhead projector out of the bowling alleys and
into the classrooms.
- Half of the world's population has yet to make its first telephone
- Only a small proportion have computers.
- And fewer still have online access to e-mail and the World Wide
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.
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:
firstname.lastname@example.org Web page: http://soli.inav.net/~njohnson Postal:
Box 1876, Iowa City IA 52244-1876
for these purposes, includes, of course, a number of distinguishable systems
- e-mail from one person to very few recipients,
- e-mail distributed as "electronic junk mail"
to unwilling recipients
- list serves that "publish" documents
(or online newspapers and magazines, "e-zines") to groups of
individuals who have requested the material; usually "edited"
in some fashion, a list serve can also automatically re-distribute material
from its "subscribers" back out to the list
- newsgroups (now some 15,000 world wide) that
maintain (for a time) the entries of those who share a common interest
and wish to access the discussion
- use of a remote computer (with or without an
account), as with "ftp" (file transfer protocol), "telnet,"
or "gopher" -- or, for that matter, the Web
- real time interactive communication (as distinguished
from a-synchronous e-mail), such as "Internet Relay Chat"
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)]
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