Ever get so mad at those anonymous online bloggers and Web posters that you stamp your feet and declare something ought to be done about it?
A few weeks ago at the 20th annual Georgia Bar Media & Judiciary Conference held at the State Bar of Georgia headquarters, I had the opportunity to share advance copies of the Reynolds Courts & Media Law Journal with meeting attendees.
During informal water cooler conversations about anonymous bloggers, lawyers reacted just like judges, celebrities and regular responsible folks: They don’t like it one bit but haven’t quite thought of a solution.
Well, quietly, judges and lawyers across the country are coming up with some answers. It’s taking some thought and careful crafting from some of the nation’s best legal minds. After all, the U.S. Supreme Court has found that Americans have the right under the First Amendment to speak anonymously. What we don’t have, however, is the right to commit libel.
Think of it as the social media update of Justice Oliver Wendell Holmes’ famous admonition that “your right to swing your fist ends where my nose begins.”
But how do we decide when to unmask these anonymous speakers, and what protections ought to be in place to avoid simply using the courts as tools to harass people who say things we don’t like?
This vexing problem, among others, is examined in the inaugural issue of Courts & Media Law Journal. The Donald W. Reynolds National Center for Courts and Media, which publishes the Courts & Media Law Journal, is a public policy center that explores conflicts between the constitutional right to free speech and the constitutional right to a fair trial.
Thanks to Georgia First Amendment Foundation's Executive Director Hollie Manheimer and Dow Lohnes partner Peter C. Canfield, I was allowed to share the early copies of Courts & Media Law Journal with Georgia lawyers who care deeply about courts and media issues.
I had previously attended events hosted by Manheimer during my nearly six years as executive editor of the Columbus Ledger-Enquirer. I was — and continue to be — impressed with the level of serious study and attention paid to these important constitutional issues by the Georgia bar in general and the Atlanta bar in particular.
That’s one of the reasons I took the Georgia bar exam and recently returned to the practice of law — to be closer to the front lines in the fight for freedom of information, as the print media struggle through their financial troubles.
As a print reporter, I have covered a few big trials.
Every few years, there is a “trial of the century,” during which courts are asked to change venue or grant a new trial to a defendant based on the volume or nature of pretrial publicity. Now, with the advent of social media — where any communication device makes virtually anyone a reporter — these constitutional conflicts will become more complex and difficult to resolve.
I covered the O.J. Simpson case as a young reporter for The Wall Street Journal and wrote one of my all-time favorite stories, which appeared under the headline “OJGDP” (as in O.J. Gross Domestic Product). It is noteworthy that a good deal of the bounty reaped from that case was in the form of increased ad revenues resulting from higher television ratings. But the U.S. Constitution does not forbid profit. Given the current state of the economy, I’d rather like to think the founding fathers wanted the Constitution to encourage profit — the commerce clause, contracts clause and all that.
But the same Constitution also gives defendants like Conrad Murray — who has been charged with involuntary manslaughter in the death of pop superstar Michael Jackson — the right to a fair trial. (I’ll be attending the Murray trial as a courtroom observer, monitoring and writing on free press/fair trial issues).
Because Simpson beat the murder rap, his "Dream Team" was never called upon to appeal to the courts for redress for prejudicial publicity in alleged violation of his rights. Unlike O.J., however, former Enron chief Jeffrey Skilling was convicted in his trial of the century. He appealed.
In the inaugural issue of Courts & Media Law Journal, Wall Street Journal reporter John Emshwiller and Atlanta First Amendment attorney Walter H. Bush of the Carlton Fields law firm team up to delve deeply into the First and Sixth Amendment issues analyzed in the 2010 U.S. Supreme Court decision Skilling v. United States, 130 S.Ct 2896.
First, Bush analyzes the question of denial of Skilling’s motion to change venue. Second, he looks at the motion for a new trial. Both arguments were based on “prejudice” arising out of the volume and nature of trial publicity in the case.
The Bush article asks whether social media has “wrecked” traditional venue law.
We received some wonderful feedback from our first issue, including from U.S. Supreme Court Justice Ruth Bader Ginsburg, who wrote: “I found the articles on Skilling engaging, though, of course, I do not agree with the observation on p. 30, that the court ‘ignored’ the magnitude of the Enron tragedy. The venue question was one on which reasonable minds could (and did) disagree. One can recognize the relevant considerations, yet evaluate them differently. For the majority, the views of the seasoned District Judge, a resident of the community, were key.”
Justice Ginsburg is a graceful, elegant member of the court, and her opinion in Skilling (Bush and I agree) was a deft effort by a skilled jurist struggling through the inherent conflict between our free press and fair trial rights.
Courts & Media Law Journal will be an honest broker of these issues, standing between the courts and the media, and seeking improved relations and understanding between judges and journalists.
Returning to the anonymous blogger piece, which I authored, it seems the courts are all over the map on when and under what circumstances to unmask potential libel defendants in public figure cases. I pose a standard that I think is simple and workable: If the plaintiff can prove falsity and material damages, he or she gets the IP address of the anonymous defendant and is allowed to proceed. Otherwise, the case is thrown out of court.
Ben Holden, director of the Donald W. Reynolds National Center for Courts and Media, is a 1989 graduate of Boalt Hall School of Law and a 1985 graduate of the Missouri School of Journalism. He is a former Missourian editor and serves on the advisory board for the Missourian. He has been licensed to practice in California since 1989. He was admitted to the Georgia bar in 2009. E-mail article submissions or comments to: firstname.lastname@example.org