Tucker Lecture, Law and Media Symposium

I. Introduction 1449II. The Internet is Different 1451III. Implications 1457IV. Conclusion 1465I. IntroductionMedia law has developed remarkably unrelated to the growth of various media. Think about defamation law for a moment. Most of American law concerning libel and slander is based on English defamation law. In fact, if you go back and read English law, long before the framing, it would not be much different from many of the principles that are followed in American state and federal courts today. The development of major national newspapers, radio, and television did not alter defamation law very much. There was a major shift in defamation law following New York Times v. Sullivan1 in 1964 as the Supreme Court imposed First Amendment limits on defamation. But these changes were not the result of the development of media.Another major tort that exists with regard to the media is public disclosure of private facts, invasion of privacy claims. This is a newer tort. It can be traced back to the key article by Warren and Brandeis in the Harvard Law Review in 1890 on the right to privacy.2 But even this tort seems relatively unaffected by the development of various media. Even now, the cases about public disclosure of private facts do not seem to pay much attention to whether it is occurring in newspapers, radio, television, or the Internet. Here, too, the tort has developed and been refined unaffected by how the media has grown and changed.I think what has happened is that intellectual frameworks and legal constructs developed and have simply been applied to the new media. The assumption has been that at least with regard to the law, the new media are changes in degree, not in kind. It is true of the First Amendment as well. Generally, the First Amendment principles concerning speech and press do not pay much attention to the medium that is involved. I do not want to overstate this. In the area of whether or not the government can require a right to reply there has been some attention to the medium. The Supreme Court drew a distinction between the broadcast and the print media as to whether the government can impose a right to reply.3 In the area of indecency regulation, the Court has paid a good deal of attention to the medium.4 But other than these exceptions, I think it is fair to say that the law is not changed depending on the medium that is involved. It is not surprising then that as the Internet has developed over the last fifteen years, courts have tried to take existing categories, existing principles and apply them to this new medium.5I believe that this is a mistake. The Internet is inherently different from all other media that preceded it. In some cases, there is a need to have radical changes in the law because of the development of the Internet. To put it in terms of the terminology used a moment ago, I want to argue that the Internet is in kind different from other media, not just a difference in degree. I structure my argument around two points. First, the Internet is in fact different from all other media. And then second, I want to try to trace some of the implications of this difference. If you accept the premise, what does it mean with regards to the law and how it has to develop?II. The Internet is DifferentThe Internet really is different from all of the media that preceded it: The pamphlets at the time of the founding, the local newspapers that existed then, the national newspapers that began to develop, magazines, radio, television. What is it that makes the Internet different?The first is the democratization of ownership. At least for national media, until now, it had always taken a substantial amount of capital in order to be able to have access. …