Outlaw Speech on the Internet: Examining the Link Between Unique Characteristics of Online Media and Criminal Libel Prosecutions

ABSTRACT Criminal libel prosecutions have been relatively rare since the United States Supreme Court expounded new constitutional standards for state criminal libel laws in Garrison v. Louisiana, in 1964. The rise of the Internet, however, in the mid-1990s coincided with a modest increase in the number of threatened and actual prosecutions for speech. About one-third of the recent criminal libel cases, including the notable prosecution of a Utah high school student, involved Internet speech. In examining the role played by the unique characteristics of the Internet in recent criminal libel cases, this article concludes that online speech justifies greater--if not absolute--protection from libel prosecution. I. INTRODUCTION Somewhere in America a 16-year-old male high school student with green and pink hair is angry because a more popular teen has publicly called his girlfriend a "slut. " In a crowded school hallway, the 16-year-old shouts that the other boy's girlfriend is also a "slut. " The incident invariably unlocks the boy's pent-up frustrations with high school life. He directs his anger not only at classmates, but also at school administrators and teachers. Chafing under the iron-fisted rule of his school's principal, with whom he has had frequent run-ins and even physical altercations, the pink-and-green-haired boy yells loudly that the principal is a "drunk" and a "dickhead" who is having an affair with the school secretary. The boy then accuses a male teacher of homosexual conduct and calls a female staff member a "bitch. " What punishment could the 16-year-old expect for his behavior? Suspension perhaps, or maybe expulsion, but only if school authorities could show that the boy's words or actions "materially disrupt[ed] classwork or involve[d] substantial disorder or invasion of the rights of others" sufficient to overcome the boy's First Amendment right to speak. (1) Suppose, however, the 16-year-old boy had instead bitten his tongue in the school hallway but, quietly seething, hatched a plan to publish an off-campus newspaper to express his feelings. The boy used a home computer to craft various satirical articles about his classmates, teachers, and principal--repeating the same vulgar accusations mentioned above. The newspaper then was distributed generally throughout town, but not at school, although the 16-year old left an anonymous note in a school classroom that disclosed an off-campus location where copies of the publication could be obtained. What punishment could the boy now expect from school authorities? Because of the First Amendment, school officials under this scenario could not punish him at all: We may not permit school administrators to seek approval of the community-at-large by punishing students for expression that took place off school property. Nor may courts endorse such punishment because the populace would approve. The First Amendment will not abide the additional chill on protected expression that would inevitably emanate from such a practice. Indeed, experience teaches that future communications would be inhibited regardless of the intentions of well meaning school officials. (2) In this scenario, suppose instead that the boy's off-campus newspaper were an online newspaper, created at the boy's home, whereby only a note left in a school classroom disclosed the World Wide Web address where the newspaper could be located. What punishment could the boy expect? School officials still can't punish him because he created the online publication after school and with the use of a home computer, (3) but somehow the added dimension of the Internet in this scenario fuels the community to act and do strange things that would not necessarily have occurred in the previous situations. (4) Here, even after the school's principal has filed a civil defamation lawsuit, he and the community still aren't satisfied that the boy has learned his lesson: they want more. …