INTERESTS OF THE AMICI CURIAE
The amici curiae are journalism membership and trade associations, online publications, and academic institutions which are concerned that the District Courtís opinion, should it be affirmed, will significantly chill freedom of the online press by stifling one of its important features, linking. Amici curiae believe that if online journalism is to thrive, courts must allow it the unqualified First Amendment protection afforded its print counterparts, a result already mandated by the Supreme Court. The District Courtís subjective test to determine "linking liability," which departs from previously unquestioned freedom of the press principles, is a dangerous precedent; it allows Congress to authorize prior restraints on whole classes of information published on the World Wide Web, the publication of which is constitutionally protected in all other media.
The amici curiae represent the broad range of journalistic interests and are eminently qualified to speak to the Court on these issues:
Amici curiae are keenly aware that this case presents the issue of linking liability for the first time and that this holding may be the model for how future courts consider freedom of the online press hereafter. The importance of this case to amici curiae and the entire online journalism community cannot be overstated. Amici curiae urge that this court honor the Supreme Courtís endorsement of the World Wide Web as a "dynamic, multifaceted, category of communication" and exercise extreme caution so that the still-evolving field of online journalism is not substantially hindered at this critical stage in its development.
A. The World Wide Web Has Become a Core News Medium
The World Wide Web has revolutionized journalism. Not since the emergence of television a half-century ago has a technological innovation so dramatically enhanced the ability of journalists to disseminate information to the public. The Web provides an extraordinary 24-hour framework for the distribution of news: text can be fused with sound, pictures and video; supplemental sources of information can be instantly cross-referenced; readers can participate through polls and discussion groups. The Web liberates journalists from the space and time barriers that confine the traditional print and broadcast media.
It is no surprise then that the Web is the most rapidly growing medium for the delivery of news. Results from one of the largest regular surveys of Web users show that 55 percent of all users access news websites at least once a day. A 1999 study by the Pew Research Center for the People and the Press found that 41 percent of U.S. adults were online news consumers, nearly double the percentage from two years earlier. And the number of news websites continues to grow. Editor & Publisherís comprehensive Media Info Web page, which tracks all news organizations with a Web presence, shows there are now 8,844 news websites in the United States alone.
Online journalism, although once considered a peripheral component of traditional news media, is now part of the news media mainstream. It is an independently viable industry, with its own trade associations, unions, style guidelines and industry awards. Online journalists have established their credibility within their profession and with the public as well. In the Pew study cited above, 49 percent of Web users said online news was more accurate than news from traditional news sources, and a similar survey by Jupiter Communications found that more than 80 percent of Web users trust online news as much as traditional news sources.
Yet, the potential of online journalism is still largely untapped. As the Internet continues to grow, as bandwidth expands, as computer and modem processing speeds increase, and as more creative uses are made of the Webís capabilities, the Web will continue to evolve as an important channel through which the public gets its news.
B. Linking, One of the Defining Characteristics of the Web, Is a Defining Characteristic of Online Journalism
Hyperlinks are the engine of the Web, allowing rapid connections to be made between people and information. Without hyperlinks, the Webís extraordinary ability to facilitate the rapid, global dissemination of information would be severely impaired. Hyperlinks are the threads that tie together disconnected bits of information on the Web, permitting Web publishers to take advantage of all available knowledge when crafting messages. As the District Court noted in ACLU v. Reno, 929 F.Supp. 824, 837 (E.D. Pa. 1996), affíd, 521 U.S. 844 (1997), "The power of the Web stems from the ability of a link to point to any document regardless of its status or physical location."
Hyperlinks enhance online news reporting. The rapid access to layers of supplementary information allows journalists to add depth and context to their stories, making them more meaningful and useful to readers. Links allow the journalist to direct readers to the journalistís primary source material, lending credibility to the report and empowering the reader to investigate independently. Instead of merely summarizing the results of a complex scientific study, reporters often include a link to the research report or journal, allowing readers to make their own assessments and to scrutinize the reporterís account. Links can take readers to research archives, past articles, government records, audio and video clips of newsworthy events, discussion groups, and more. Many of these sources are stored on servers in other states or countries or are not prominently featured on the Web and would be difficult to find without hyperlinks.
Online journalists use links like these routinely. When Judge Starr issued his report on allegations against President Clinton, and when the Florida Supreme Court issued its recent election rulings, online accounts were accompanied by links to the actual documents. And if the Web had been available in 1971, journalists for the Washington Post and New York Times may have linked to the Pentagon Papers in addition to publishing their own interpretations of those controversial documents. See New York Times v. United States, 403 U.S. 713 (1971).
Links enable the online journalist to fully include each of the elements of reporting ó strong storytelling devices, presentation of a variety of viewpoints, and attribution of primary and secondary sources ó in a story. According to the Society of Professional Journalists, one of the ultimate goals of journalism is to provide readers with comprehensive accounts of the news, and one of the journalistís ethical mandates, in order to "Seek Truth and Report It," is to identify sources and provide the public with as much source information as possible.
Links are critical features in each of the three major models for online journalism. News websites that are associated with major print and broadcast news organizations, such as CNN.com, USAToday.com and ABCNews.com, publish original articles alongside some that may have appeared in their other-media counterparts. These sites supplement each type of article with hyperlinks to related content on the Web and with content that would not fit in their associated print or broadcast versions. In contrast, sites such as Salon.com, CNet.com and TheStreet.com, produce their own content exclusively for the Web. These sites also make extensive use of hyperlinks to augment their stories and to connect readers with other Web content. Sites in a third category, "meta" or "portal" sites, rely almost entirely on hyperlinks: these sites contain menus of hyperlinks, organized by topic, which readers can select. Many portal sites also use search engines or robots to create continuously updated pages of links that are customized to the interests of individual visitors or subscribers.
Forcing journalists to withhold information that they believe is important for readers not only contradicts long-standing journalistic and First Amendment principles, as explained below, it also undermines the Webís essential purpose. The Web was designed to work as a completely open system, empowering all people to access all posted information. Journalists can help advance that objective by investigating information on the Web and providing readers with useful links. As the Webís principal architect has said:
The Web was designed to be a universal space of information, so when you make a bookmark or a hypertext link, you should be able to make that link to absolutely any piece of information that can be accessed using networks. The universality is essential to the Web: it loses its power if there are certain types of things to which you canít link.
II. THE DISTRICT COURTíS TEST FOR LINKING LIABILITY VIOLATES THE FIRST AMENDMENT PROTECTIONS OF FREEDOM OF THE PRESS
Publishers on the World Wide Web, under the District Courtís ruling, are subject to injunctions and liability that are unthinkable in other media. The District Courtís conclusion stands in stark contrast to the U.S. Supreme Courtís commands that debate on public issues be "uninhibited, robust and wide-open," New York Times v. Sullivan, 376 U.S. 254, 270 (1964), and that publication on the World Wide Web is due unqualified First Amendment protection, Reno v. ACLU, 521 U.S. 844, 870 (1997).
As different as the Web may be from other journalistic media, its essential purpose is the same: to inform the broadest audience possible as fully as possible. This common and fundamental purpose is what underlies the pressís hallowed constitutional status.
The right to publish necessarily encompasses the right to publish a link. But the District Court, giving talismanic effect to the phrase "functionality," subjects Web publications to restrictions not permitted in the print media. Yet, the only "function" with which the District Court takes issue is the more rapid provision of additional information. The expression by the publisher ó publishing the address of a website ó is identical in each case, although the reader may use the furnished information in slightly different ways. Instead of typing a Web address identified in a print article into a browser or using a search engine to find referenced material, the reader can click on the link.
The "function" that the District Court found justified a new constitutional rule is no different from the pre-Web practice of identifying reference material that a reader could then retrieve from a library. Web journalism should not lose a degree of constitutional protection because it works so efficiently.
B. The District Courtís Linking Liability Test Will Chill Significantly More Speech Than the Defamation Standard
The District Courtís creation of a special constitutional test whereby an online publisher may be subject to suit under a federal statute merely because it has included a link in an article will have a serious chilling effect on journalistic practice. A journalist may sooner omit links, even those for which liability would be unlikely to attach, than subject herself to a trial regarding what she did or did not know or intend. The courtís framework thus rewards timidity. It ensures that a great deal of important, newsworthy information will not reach the public.
The District Court acknowledged that the chilling effect engendered by its "rule permitting liability for or injunctions against Internet hyperlinks is a genuine concern." Universal City Studios v. Reimerdes, 111 F. Supp.2d 294, 340 (S.D.N.Y. 2000). But the court believed that it had set out a standard that was "highly analogous" to the test for defamation, a standard that "gives the press great comfort in publishing all sorts of material that would have been actionable at common law." Id. at 341. The District Court held that an online publisher could be enjoined or held liable if it were proven that "those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating the technology." Id.
The journalists represented by amici curiae do not find "great comfort" in the District Courtís subjective test. The District Courtís analogy is inapt; the test for linking liability will flatly prohibit the publication of information that is permitted in other media. The test will chill significantly more speech than the defamation standard announced by the Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964), and subsequent cases.
Despite the District Courtís efforts, its test for linking liability and the constitutional tests for defamation differ in several significant ways. Most basically, the New York Times test, requiring a clear and convincing showing of actual malice, allows for defamation actions in only the most exceptional cases. The test is set up so as to err decidedly on the side of allowing undesirable publication, rather than risk infringing unnecessarily on the freedom of the press:
Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.
St. Amant v. Thompson, 390 U.S. 727, 732 (1968).
The significant barrier to liability set out in the defamation standard is consistent with the fundamental principle of the First Amendment that in order to place as few limits on publication as possible, our democracy must tolerate some abuses of a free press. Thus even a strong potential for speech to be used for illegal purposes does not justify a blanket restriction. As this Court has said, "it is unfortunate that the exercise of liberties so precious as freedom of speech and of the press may sometimes do harm that the state is powerless to recompense: but this is the price that must be paid for the blessings of a democratic way of life." Edwards v. National Audubon Society, 556 F.2d 113, 122 (2d Cir. 1977).
The District Court takes the opposite position; it admits that its standard will encompass fair uses as well as infringing ones within its prohibition. Instead of requiring culpability akin to "actual malice," the courtís test is met by the simple intent to disseminate certain information.
Thus even the publication of circumvention technology in the context of an educational story pertaining solely to non-infringing uses is prohibited in order to guard against the possibility that an infringing use of that information may occur. As a result, banned from publication are links to a website containing DeCSS in a report on permissible efforts to reverse engineer CSS, or in a report on the way a film professor compiles film clips for exhibition in class, or in a report on the District Courtís decision. Banned are links that inform the reader exactly what DeCSS is, even if the reader is advised not to "use" DeCSS.
Moreover, unlike the defamation standard in which relief is confined to damages, the District Courtís test authorizes injunctions, that is, a judicial order barring publication, as well as liability. See Near v. Minnesota, 283 U.S. 697, 718-19 (1931) (stating that the defamed "find their remedies . . . in actions" for damages, "not in proceedings to restrain . . . publication"); Kramer v. Thompson, 947 F.2d 666, 671-680 (3rd Cir. 1990) (reviewing the rule against injunctions and characterizing exceptions to it as merely a "trickle"); Community for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C. Cir. 1987) (stating the settled rule that "equity does not enjoin a libel or slander and that the only remedy for defamation is an action for damages"); Alberti v. Cruise, 383 F.2d 268, 272 (4th Cir. 1967). The rule against injunctions has varied histori cal origins. But perhaps the most important reason for its continued vitality is the concern that prohibiting publication is plainly censorship. See Northwestern Pac. Railroad Co. v. Lumber & Sawmill Workersí Union, 31 Cal.2d 441, 448 (1948) (holding that equity "will not restrain the commission of a libel or slander, for that is prior censorshipóa basic evil denounced by the Constitution of the United States . . . in protecting freedom of speech and press"); see generally Annotation, Injunction as a Remedy Against Defamation of Person, 47 ALR2d 715, 726-27 (1956) ("The most formidable obstacle to the grant of injunctive relief against personal defamation in this country has been the feeling of the courts that to allow such relief would infringe the constitutionally guaranteed freedoms of speech and of the press by setting up what would be, at least potentially, a system of judicial censorship."). This principle is not uniqu e to defamation jurisprudence. "Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints." New York Times v. United States, 403 U.S. 713, 717 (1971) (Black, J. concurring).
Further absent in the District Courtís formulation is any analogue to the requirement that the publication be defamatory, that is, actually harmful to the subjectís reputation, not merely untrue. See Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997); cf. Wood v. Georgia, 370 U.S. 375, 384-88 (1962) (explaining that one who makes false statements damaging to the reputation of a judge may be held in contempt of court only upon a showing of a clear and present danger of obstruction of justice). This requirement is consistent with the broader rule that restrictions on First Amendment rights are not tolerated unless "the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994).
The District Courtís standard, in contrast, allows one to halt publication without any showing that the link was used improperly by any reader or caused anybody any harm at all. Although a per se standard of liability does exist for defamation actions, in which the false statements are inherently damaging, a per se standard must not be applied where, as here, publication supports "remarkably varied" legal and non-damaging uses. See The Florida Star v. B.J.F., 491 U.S. 524, 539-40 (1989) (rejecting an ordinance in which "liability follows automatically from publication"); see also Celle v. Filipino Reporter Enterprises, 209 F.3d 163, 179 (2d Cir. 2000) (noting the "fuzziness"of the defamation per se rule).
Within the defamation analogy, publication by hyperlinking more closely resembles the practice of accurately reporting that allegedly false and defamatory statements were made by a reliable person. By hyperlinking, a publication is merely referring its reader to a reliable source of information about a newsworthy event or issue without espousing or concurring with the linked-to siteís purposes.
In the defamation context, this Court, recognizing that "the First Amendment protects accurate and disinterested reporting of [newsworthy] charges," has applied a "neutral reportage privilege." Edwards, 556 F.2d at 120. Under the neutral reportage privilege, the press may report neutrally on the fact that asserted defamatory statements were made. The rule is derived from the very basic concept that the press must be free to report on newsworthy controversies. "The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them." Id.
Indeed, linking comes with even fewer risks than neutral reportage and is thus worthy of even greater constitutional protection. The online journalist is at least one step removed; she does not "republish" the allegedly harmful statement but merely indicates to the reader where it may be found.
On a practical level, the District Courtís standard adds a significant burden to present day news reporting practice as dictated by journalistic ethics. Sound journalistic practice mandates that journalists seek to report the truth fully and fairly. See supra Society of Professional Journalists Code of Ethics. The defamation test requires nothing more. Merely having adhered to this standard is usually adequate to defend oneself against a charge of defamation; a journalist may refer to notes of interviews and investigations, research materials, and other documentary evidence to mount a defense. However, a journalist who includes links in a story may have to retain an extensive record of the content of all linked-to sites at the time the link was created solely for the purpose of defending herself in an action based on linking liability.
In addition, the examination into the publisherís intent in providing the link, required in the third part of the District Courtís test, presents risks not present when the issue is merely the reporterís knowledge. Indeed, the core purpose of journalism is to disseminate information; one could scarcely imagine a situation in which the third prong of the District Courtís test offered a legitimate journalist any safe haven. The District Courtís test opens up to examination the subjective intent of numerous individuals responsible for including a link in a story.
These unparalleled burdens, and the threat of having to testify about every single link included in an article will result in a grave chilling effect on linking.
The result of the District Courtís ruling is that any court is now empowered to issue an order barring any publisher from purposefully publishing a link to a site that contains DeCSS. This result is not only an unprecedented intrusion on the well-established First Amendment right to editorial freedom, it is a classic prior restraint. No matter what the situation or the news story, linking to a site containing DeCSS subjects the publisher to liability unless the link was accidental. The only defenses available are the ignorance that DeCSS is on the linked-to site, the ignorance that DeCSS is unlawful circumvention technology, and the lack of intent to maintain the link as a source of the DeCSS information. It is not a defense that the article was, despite the fact that it also contained DeCSS, an important source of information. It is not a defense that DeCSS is uniquely illustrative of a newsworthy issue. It is not a defense that no copyright holder would likely be imminently harmed by the publication of the link, or that an adequate post-publication remedy is available.
The fact that DeCSS is deemed contraband by the Digital Millennium Copyright Act does not change the constitutional calculation. Indeed, the DMCA itself forbids the use of the Act to grant a prior restraint. 17 U.S.C. 1201(b)(1).
The prior restraint so authorized is one that could not issue in the print medium; it is hard to imagine that a newspaper could be restrained from directing its readers to the web address of a site that contains DeCSS, or for that matter, the title and edition of a magazine in which DeCSS was published, or the address to which to send orders for the T-shirt that has DeCSS printed on it, or the name of an encryption expert who may have a copy. The Supreme Court has long protected the First Amendment right of the press to publish not only mere "links" to confidential information, but the information itself. See Landmark Communications v. Virginia, 435 U.S. 829, 840 (1978) (rejecting argument that First Amendment protection does not extend to "the publication of information Ďwhich by Constitutional mandate is to be confidentialí"). See, e.g., The Florida Star v. B.J.F., 491 U.S. 524, 526 (1989) (identity of rape victim); Smith v. Daily Mail Publishing Co., 443 U.S. 97, 98 (1979) (identity of juvenile offender). The pressís rights are not necessarily diminished because the information was initially obtained improperly by someone else. See New York Times v. United States, 403 U.S. 713, 714, 740 (1971) (White, J. concurring) (holding that the New York Times could publish the confidential Pentagon Papers, even though the reporter obtained them without authorization and possibly as a result of criminal conduct). Even if one were to accept the assertion that the harm caused by the disclosure of DeCSS is not capable of being completely undone by post-publication relief, an injunction against publication is still not justified. See Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 310-11 (1977) (refusing to enjoin the publication of photographs and the name of an 11 year old who had appeared at a detention hearing, even though a state statute authorized such an order). P>
III. ANY TEST FOR LINKING LIABILITY MUST BE BASED ON ACTIVE PARTICIPATION IN A TRAFFICKING ENTERPRISE
The tension in the District Courtís opinion, evident by the courtís authorization of prior restraints despite the DMCAís express prohibition on them, is a result of the District Courtís wrongly perceiving the publication of a link to another website, without anything more, to be "offering to the public, providing, or otherwise trafficking." The First Amendment requires that "trafficking" be more than merely directing a reader to another source of information. Although a hyperlink may be evidence of actionable conduct, it cannot be the basis for liability in and of itself.
Courts should not formulate new constitutional tests specific to a medium unless such tests are absolutely necessary. In this case, existing First Amendment tests for vicarious liability adequately address Congressís concern in adopting the DMCA. For this reason, amici curiae endorse the hyperlinking liability analysis put forth by amici curiae American Civil Liberties Union et al.
For the foregoing reasons, amici curiae believe the judgment below should be reversed.
_______________________ Date: January 25, 2001
David Greene (Cal. Bar. No. 160107)
First Amendment Project
1736 Franklin Street, 9th Floor
Oakland, CA 94612
Jane E. Kirtley (NY Bar No. 1716588)
Erik F. Ugland (Minn. Bar No. 0261300)
Silha Center for the Study of Media Ethics and Law
School of Journalism and Mass Communication
University of Minnesota
111 Murphy Hall, 206 Church Street SE
Minneapolis, MN 55455-0418
Telephone: 612 625 9038
Fax: 612 626 8012
Milton Thurm (NY Bar No. MT4581)
Thurm & Heller, LLP
261 Madison Avenue
New York, NY 10016
ATTORNEYS FOR AMICI CURIAE