The amici curiae are journalism membership and trade associations, online publications, and academic institutions which are concerned that the District Court’s 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 Court’s 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.

1. ONLINE JOURNALISM IS AN IMPORTANT PART OF THE AMERICAN PRESS, AND LINKING IS AN IMPORTANT COMPONENT OF ONLINE JOURNALISM

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 & Publisher’s 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.

1. Restrictions on Linking Hinder the Basic Functioning of the Web

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 Web’s 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 Web’s 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 can’t link.

II. THE DISTRICT COURT’S TEST FOR LINKING LIABILITY VIOLATES THE FIRST AMENDMENT PROTECTIONS OF FREEDOM OF THE PRESS

1. The Unqualified Free Press Protections Applied to the Print Medium Should be Applied to Online Journalism

Publishers on the World Wide Web, under the District Court’s ruling, are subject to injunctions and liability that are unthinkable in other media. The District Court’s conclusion stands in stark contrast to the U.S. Supreme Court’s 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 press’s 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 — publishing the address of a website — 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 Court’s Linking Liability Test Will Chill Significantly More Speech Than the Defamation Standard

The District Court’s 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 court’s 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 Court’s subjective test. The District Court’s 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 Court’s 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 court’s 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 Court’s 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 Court’s 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 (3^rd 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 (4^th 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 Workers’ Union, 31 Cal.2d 441, 448 (1948) (holding that equity "will not restrain the commission of a libel or slander, for that is prior censorship—a 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 Court’s formulation is any analogue to the requirement that the publication be defamatory, that is, actually harmful to the subject’s 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 Court’s 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 site’s 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 Court’s 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 publisher’s intent in providing the link, required in the third part of the District Court’s test, presents risks not present when the issue is merely the reporter’s 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 Court’s test offered a legitimate journalist any safe haven. The District Court’s 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.

3. The District Court Interprets the DMCA to Authorize a Prior Restraint Against Publication of DeCSS by all Subsequent Publishers